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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Fletcher v. Commissioner of Public Works [2003] IESC 13 (21 February 2003)
URL: http://www.bailii.org/ie/cases/IESC/2003/13.html
Cite as: [2003] IESC 13, [2003] 2 ILRM 94, [2003] 1 IR 465
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80/02
Keane C.J.
Denham J.
Murray J.
Hardiman J.
Geoghegan J.
BETWEEN
PLAINTIFF/RESPONDENT
DEFENDANTS/RESPONDENTS
[Judgments delivered by Keane C.J. and Geoghegan J.; Denham J., Murray J., and Hardiman J. agreed with both judgments.]
JUDGMENT delivered the 21st day of February, 2003, by Keane C.J.
Introduction.
1. This is an appeal by the defendants from a judgment and order of the High Court (O'Neill J) of the 15th 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.
2. 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.
3. 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 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 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 four appeals.
4. The plaintiff in this case, Stephen Fletcher, was born on the 28thDecember 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.
5. 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.
6. 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 3rd 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.
7. 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 contaminated clothes and washing facilities must be within the confined area. Workers, when washed, should then move directly to their clean change area."
8. 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".
9. 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 that finding.
10. 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.
11. 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 would not happen 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.
12. 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 been significant.
13. The trial judge found that the plaintiff had been angered and shocked, and understandably so, on being informed that he had been unnecessarily and without his knowledge exposed to these risks. Initially, he consulted a solicitor who in turn referred him to Professor Clancy. He was not, however, reassured by what he was told and continued to worry about the possible danger to his health and also the effect all of this might have on his wife's health, she already having suffered an illness, although the plaintiff was assured that this had no relationship whatever to his exposure to asbestos dust. Ultimately, he went to a consultant psychiatrist, Dr. John Griffin, who concluded that he was suffering from a "reactive anxiety neurosis", which, as the trial judge found, could not be assuaged by counselling or the best advice which was available.
14. The trial judge summed up his conclusions on this aspect of the case as follows:
"Dr. Griffin, whose evidence I accept, described [him] as having a bug in his brain. It just will not go away. It seems to me to be a very apt way to describe it, and it seems to me that what has happened to the plaintiff is that he has this thing in his head. Everybody can tell him that there is no reasonable basis for it. There is a rational basis for it. [sic] There may not be a reasonable basis for it, but it just will not go away. That is not to say that the plaintiff is to be in some way criticised for that or that this is being said as some form of contrivance on his part. I am absolutely satisfied it is not. His fear, his anxiety is a genuine one."
15. The defendants submitted that the plaintiff's anxiety reaction was not caused by the exposure to the asbestos dust itself but by his having become aware of the risk arising from such exposure. They accordingly submitted that, in accordance with the decision of this court in Kelly –v- Hennessy(1995) 2 IR 253, the plaintiff could only recover for such psychiatric illness, unaccompanied by physical injury, if he had suffered a nervous shock and as a result thereof, had suffered a recognisable psychiatric illness. The trial judge said, however, that he was satisfied that the plaintiff's psychiatric illness was the result of his exposure to the asbestos dust and not his exposure to the knowledge of it. He was also satisfied that it was reasonably foreseeable that such a psychiatric illness would be the result where a person of normal fortitude became aware that he had been exposed to the risk. In those circumstances, he was satisfied that the plaintiff was entitled to recover damage for the psychiatric illness which he had suffered as a result of the defendants' negligence and, as already noted, he went on to assess the damages in the sum of £48,000.
16. From that judgment and order, the defendants have now appealed to this court. They do not dispute any of the findings of the trial judge as to their failure to take proper precautions for the health and safety of the plaintiff, or his finding that, as a result, the plaintiff was unnecessarily and without his knowledge exposed to significant quantities of asbestos dust or his finding that, in the result, he was subject to a risk, albeit a very remote one, of contracting mesothelioma. Nor have they sought to set aside the trial judge's finding that, subsequent to his having been informed of that state of affairs, the plaintiff as a result suffered a psychiatric illness. They submit, however, that the trial judge's determination that the plaintiff was entitled to recover damages in respect of that psychiatric illness, when unaccompanied by any physical injury, was wrong in law.
The nature of the "personal injury" suffered by the plaintiff.
17. It is clear that, if the risk of contracting mesothelioma to which the plaintiff was subjected was associated with some existing physical injury which the plaintiff had suffered as a result of the defendant's negligence, he would be entitled to damages in respect of that risk, just as a plaintiff who suffers a fracture of a limb giving rise to the risk of arthritis in the future is entitled to be compensated for that risk.
18. Section 2 of the Civil Liability Act 1961 provides that
" 'Personal Injury' includes any disease and any impairment of a person's physical or mental condition and 'injured' shall be construed accordingly."
19. In this case, as Professor Clancy's evidence made clear, the plaintiff's physical condition was not impaired by his exposure to the asbestos dust. It is true that, having regard to the use of the word "includes", the statutory definition may not have been intended to be exhaustive and that, at common law, the plaintiff might have been regarded as having suffered a "personal injury", in the sense that, as a result of his employer's acts and omissions, he had inhaled asbestos fibres, some of which at least had probably remained within his system.
20. It is, however, the fact that not only did Professor Clancy say that the plaintiff was not manifesting any physical symptoms of ill health resulting from his exposure to the asbestos dust: he considered the risk of his contracting mesothelioma as "very remote". He was not invited to quantify the extent of the risk in any way and it is difficult to see how, in those circumstances, the trial judge could have embarked on an assessment of damages in respect of that risk. It is, of course, quite common in personal injuries cases where, for example, a claim is made that the plaintiff has been exposed to a risk of suffering epilepsy in later life as a result of his physical injuries for evidence to be led as to the quantification of the risk, i.e., 5%, 10% or as the case may be.
21. In the present case, there was no such evidence and the trial judge confined his assessment of damages to those which, in his view, sufficiently compensated the plaintiff for the psychiatric injury from which he suffered, consequent upon his being informed that he was exposed to the risk of contracting mesothelioma. I am, accordingly, satisfied that the case should also be approached on that basis in this court.
22. The issue, accordingly, which this court has to resolve is whether the plaintiff was entitled to recover damages for the impairment of his "mental condition" which, according to the evidence of the psychiatrist, has resulted from his exposure to the risk of contracting mesothelioma, a risk which, it is beyond argument, was created by the failure of the defendants to take the precautions which a reasonable employer would have taken to ensure that he was not exposed to any such risk.
23. That in turn depends, initially at least, on whether the consequences which have ensued for the plaintiff ought reasonably to have been foreseen by the defendants. (It is unnecessary , in my view, to arrive at any conclusion as to whether this is so because, if the personal injury was not foreseeable, liability in negligence cannot arise or because, if it was not foreseeable, the damage was too remote. In either case, reasonable foreseeability is a precondition to liability. )The question as to whether those consequences were reasonably foreseeable cannot, of course, be answered by assessing the state of knowledge of the defendants at the material time. The test is an objective one, i.e., as to whether a reasonable person would have foreseen that the consequences suffered by the plaintiff might be the result of the defendant's want of care. Moreover, as Lord Bridge of Harwich pointed out in McLoughlin –v- O'Brian (1983) AC 410 at p433, the court must assume in applying this test that the hypothetical reasonable person would be properly informed as to the real, painful and disabling nature of psychiatric illness and would not dismiss the possibility of the plaintiff becoming subject to a similar illness simply because it is less susceptible to precise medical diagnosis and treatment than at least some purely physical disorders.
Recovery of damages for psychiatric illness.
24. However, the fact that it is reasonably foreseeable that particular acts or omissions will cause loss or injury to another person does not, of itself, give rise to liability in negligence. There must also be what judges have called, as the law has evolved, a relationship of "proximity" between the plaintiff and the defendant which gave rise to the legal duty to take care that the foreseeable consequence was avoided. That, of itself, does not present any difficulty for the plaintiff: if this were a case in which the injuries sustained by him were purely physical, then, given that they were the foreseeable consequence of the actions or omissions of the defendants as his employer there would, of course, be not the slightest difficulty in concluding that the latter were liable in negligence.
25. Nor is the fact that the injury of which the plaintiff complains, is purely psychiatric sufficient of itself to relieve the defendants from the consequences of their actions and omissions in the present case: since Bell & Another –v- The Great Northern Railway Company of Ireland(1890) 26 LR (Ir) 428 (following the earlier unreported decision of Byrne –v- Great Southern and Western Railway Company), it has been the law in Ireland that a plaintiff who sustains what has usually been described as "nervous shock", even where unaccompanied by physical injury can recover damages, where the other ingredients of negligence are established. It was undoubtedly the law that damages were not recoverable for grief or sorrow alone: no degree of mental anguish arising from the wrongful acts or omissions of another was compensatable at common law. But nervous shock, even where there was no physical injury or even fear of such injury, was compensatable when caused by the negligence of the defendant.
26. The circumstances in which damages for nervous shock are recoverable were set out as follows by Hamilton CJ in Kelly –v- Hennessy:
"1.The plaintiff must establish that he/she actually suffered 'nervous shock'. This term has been used to describe 'any recognisable psychiatric illness' and a plaintiff must prove that he/she suffered a recognisable psychiatric illness if he/she is to recover damages for 'nervous shock'.
2. A plaintiff must establish that his/her reasonable psychiatric illness was 'shock induced'...
3. A plaintiff must prove that the nervous shock was caused by a defendant's act or omission…
4. The nervous shock sustained by a plaintiff must be by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff…
5. If a plaintiff wishes to recover damages for negligently inflicted nervous shock he must show that the defendant owed him/her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock".
27. In the present case we are not concerned with the difficulties that have arisen in the United Kingdom in determining, subsequent to the decision of the House of Lords in McLoughlin –v- O'Brian, the boundary, if any, that should be drawn in allowing plaintiffs to recover damages for nervous shock where the plaintiff himself is not affected by such nervous shock because of his direct involvement in the accident or event brought about by the defendant's negligence, as was the case in Byrne –v Great Southern and Western Railway Company of Ireland and Bell & Another –v- The Great Northern Railway Company of Ireland. In particular, we are not, in my view, concerned with the distinction drawn in such cases between what have been described as "primary victims" and "secondary victims".
28. The plaintiff in Kelly –v- Hennessy had not been present at the car accident which gave rise to the proceedings and which had been caused by the negligence of the defendant. Her husband and two daughters were, however, victims of the accident and the plaintiff, having been informed of this by telephone, went to the hospital and saw them suffering from grievous injuries which had resulted in each case in permanent brain damage. As a result of that experience, she suffered from a recognizable psychiatric disorder. The plaintiff thus belonged to what in the subsequent English decisions was described as a category of "secondary victims" and this court, unanimously upholding the decision of the High Court, concluded that the fact that she was not a "primary victim" as were the members of her family, did not preclude her from recovering damages, provided the conditions which I have cited from the judgment of Hamilton CJ were met. (The distinction indeed is not referred to in the judgment of the learned Chief Justice, although it is mentioned in the judgment of Denham J.)
29. It had been made clear by Lord Wilberforce in his speech in McLoughlin -v- O'Brian that, in such cases, the law would have to place some limitations on the extent of admissible claims and the subsequent decisions of the same tribunal in Alcock & Others -v- Chief Constable of South Yorkshire Police (1992) I AC 310 and White -v- Chief Constable of South Yorkshire Police (1999) 2 AC 455 reflect a cautious and pragmatic approach in the case of such so called "secondary victims", whose relationship to the primary victims might, on one view, be regarded as not so close or intimate as to justify compensation or whose "nervous shock" was not the result of a sufficiently direct or immediate perception of the events in question, as where they were seen on television in the case of a football stadium disaster.
30. In the present case, the plaintiff was not in any sense a "secondary victim" in my view: the psychiatric condition was the consequence of his exposure to the risk of mesothelioma and he was thus the only victim of the defendants' want of care. Accordingly, while there are observations in some of the speeches in Alcock and White which are of assistance in this case, the general issue as to where, if at all, the boundary is to be drawn in affording compensation to "secondary victims" suffering from nervous shock does not, in my view, arise for consideration in the present case. That "nervous shock" suffered by an employee who does not have to be characterised as a "primary" or "secondary" victim of negligence in the workplace is properly compensatable where it is the result of such negligence is admirably demonstrated by the Circuit Court decision of Judge Bryan McMahon in Curran -v- Cadbury (Ireland) Limited [2000] 2 ILRM 343, where the legal issues are analyzed with his customary erudition.
Forseeability of psychiatric injury.
31. That it was reasonably foreseeable that the plaintiff would be exposed to the risk of contracting mesothelioma as a result of the defendant's negligence is not in dispute. But it does not necessarily follow that it was reasonably foreseeable that the plaintiff would suffer a recognisable psychiatric disorder, on being informed that there was a risk, albeit a very remote one, that he would contract the disease.
32. It appears to have been generally accepted at one time by the English courts that for liability for psychiatric illness to arise, it must have been reasonably foreseeable. Foreseeability of physical injury was not enough. But that has no longer been the law in that jurisdiction since the decision of the House of Lords in Page –v- Smith 1996 AC 155. The law prior to that case was stated as follows by Viscount Simonds when giving the advice of the privy council in Overseas Tankship (UK) Limited –v- Morts Dock and Engineering Company Limited (The Wagon Mound (1) (1961) AC 388, 426.
"We have come back to the plain common sense stated by Lord Russell of Killowen in Bourhill –v- Young (1942) AC 92, 101. As Denning LJ in King –v- Phillips (1953) 1 QB 429, 441 said:
"There can be no doubt… that the test of liability for shock is foreseeablity of injury by shock."
33. However, in Page –v- Smith, a majority of the law lords took a different view. That case arose out of a collision between the plaintiff's and the defendant's cars. The plaintiff suffered no physical injury, but three hours after the accident he felt exhausted and the exhaustion had continued. For twenty years prior to the accident, he had suffered from a condition, one description of which was "chronic fatigue syndrome". He instituted proceedings claiming that this condition had now become chronic and permanent and was the result of the defendant's negligence. He succeeded at first instance, but the Court of Appeal allowed an appeal on the ground that the plaintiff's injury was not reasonably foreseeable. In the House of Lords, the majority (Lord Ackner, Lord Browne-Wilkinson, and Lord Lloyd of Berwick) allowed the plaintiff's appeal, Lord Keith of Kinkel and Lord Jauncey of Tullichettle dissenting. The impact in that case was described by the trial judge as one of "moderate severity", but no one involved sustained any bodily injuries. The majority were of the view, however, that once it was reasonably foreseeable that personal injury would occur as a result of the defendant's negligence, it was immaterial whether the injury actually sustained was psychiatric as distinct from physical.
34. In arriving at that conclusion the majority emphasised that the plaintiff was properly regarded as a "primary victim" of the defendants' negligence, adopting the classification first adopted by Lord Oliver in his speech in Alcock. The plaintiff in Page –v- Smith, having been directly involved in the accident, was a "primary victim", in contrast to the relatives of those injured or killed as a result of the defendants' negligence in McLoughlin –v O'Brian, Kelly –v- Hennessy and Alcock, who were categorised as "secondary victims". In his speech in Page –v- Smith, Lord Lloyd said:
"Foreseeability of psychiatric injury remains a crucial ingredient when the plaintiff is the secondary victim, for the very reason that the secondary victim is almost always outside the area of physical impact, and therefore outside the range of foreseeable physical injury. But where the plaintiff is the primary victim of the defendant's negligence, the nervous shock cases, by which I mean the cases following on from Bourhill –v- Young, are not in point. Since the defendant was admittedly under a duty of care not to cause the plaintiff foreseeable physical injury, it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury."
35. That approach was severely criticised by Lord Goff of Chieveley in his dissenting opinion in White. That case, which like Alcock, arose out of the Hillsborough Football Stadium disaster, was also largely concerned, like Alcock, with "secondary victims", although since they were police officers, their claims were also advanced on the basis that they were owed a duty as employees and that, to the extent that they were involved in rescuing the primary victims of the disaster, they were also not in the same category as conventional "secondary victims".
36. Lord Goff's initial criticism of Page –v- White was that it was inconsistent with the earlier authorities culminating in the Wagon Mound in England and with a number of Australian decisions. He was also critical of the view of Lord Lloyd that hindsight was not a relevant factor where the plaintiff was a primary victim. Lord Lloyd, while accepting that in the case of a secondary victim it was necessary to look at the circumstances as they actually occurred and consider whether the hypothetical reasonable man would have foreseen that the plaintiff might have suffered an identifiable psychiatric illness, was of the view that this did not apply in the ordinary running down case, where it was sufficient that the defendant ought reasonably to have foreseen that an impact would result in some form of personal injury, even if in the event no direct physical injury was sustained. Finally, Lord Goff questioned whether Lord Lloyd was justified in omitting from the test in the case of a primary victim what might be described as the "reasonable fortitude" factor, i.e., whether the defendant, in a case such as Page –v- Smith, ought reasonably to have foreseen that the plaintiff would have suffered a particular psychiatric reaction which would not have followed in the case of a person endowed with "normal fortitude" or "ordinary phlegm". In the case of a primary victim, Lord Lloyd thought, the defendant must take the victim as he finds him. In this context, Lord Lloyd cited with approval the dictum of Geoffrey Lane J, as he then was, in Malcolm –v- Broadhurst (1970) 2 All ER 508 that there was no distinction between an "eggshell" skull and an "eggshell" personality. Lord Goff, however, considered that, in so concluding, Lord Lloyd had erroneously taken an exceptional rule – the eggshell principle – relating to compensation, and treated it as being of general application, thereby, as he put it, "creating a wider principle of liability".
37. However, Lord Goff's concerns as to the innovative features of Page –v- Smith were not shared to any notable degree by the other law lords in White. It is relevant to note that Lord Goff expressed particular disquiet at an inference which the defendants had sought to draw from Lord Lloyd's speech i.e., that in the case of both primary and secondary victims the defendant would be liable only where the victim who suffered psychiatric injury was within the range of foreseeable injury, a test that was met, of course, in Page –v- Smith, but not by the plaintiffs in White.
38. It is also true that the majority decision in Page –v- Smyth has been severely criticised by academic commentators as being in conflict with a significant body of existing case law in the United Kingdom and Australia and as also drawing distinctions between primary and secondary victims, in terms of the foreseeability of psychiatric damage, the implications of which for a wide range of cases had not been sufficiently considered.( Mullany, ,'Psychiatric damage in the House of Lords – Fourth time unlucky – Page v Smith ', 3 Journal of Law and Medicine (Aus) 112; Handford, ' A new chapter in the foresight saga : psychiatric damage in the House of Lords' , 1964 Tort Law Review (Aus ) 6 ; Trinidade' Nervous shock and negligent conduct ', 112 LQR, 22. )
39. No doubt it can be said that there was no reason in principle why a driver who ought to have foreseen that his negligent driving would cause the plaintiff to sustain personal injury should be relieved from liability simply because, in what was obviously an unusual case, the victim suffered psychiatric consequences, unaccompanied by any physical trauma. But it seems to me that, in the present case, it is unnecessary to consider the wider implications of the majority decision in Page –v- Smyth, because we are here solely concerned with the foreseeability of psychiatric injury flowing from the negligence of a defendant in a specific context, i.e., the failure of an employer to take reasonable precautions for the health and safety of his employees.
40. I see little difficulty in arriving at a conclusion that, in a case such as the present, it was reasonably foreseeable that the plaintiff would suffer a recognisable psychiatric disorder as a result of his taking medical advice and being informed that he was at risk of contracting the disease of mesothelioma, even though at the time of the proceedings he had not actually contracted that disease. Moreover, that result should also follow, irrespective of the extent of the risk. If, for example, the advice of Professor Clancy had been that as a matter of probability he would contract the disease and the plaintiff had, in the result, suffered the psychiatric disorder of which he now complains, it would seem to me unjust and anomalous that the defendants should escape liability. The fact that the advice he received was that he was at no more than a very remote risk of contracting the disease would not be a reason, in principle, for relieving the defendants of liability in limine. If they ought to have foreseen that the plaintiff would be at risk of contracting mesothelioma and, as a result, might also suffer psychiatric injury, the fact that the psychiatric injury would not have been suffered by a person of 'ordinary fortitude' is not material: the general principle that the wrongdoer must take his victim as he finds him should, in the absence of other considerations, apply.
41. I do not agree in this context with the view of the learned trial judge that the plaintiff's reaction should be regarded as that of a person of ordinary fortitude. I think that such a person, on being informed that there was no more than a minimal risk of his contracting the disease, would not have permitted so remote a contingency to disrupt his family, working and social life, any more than he would have allowed all the risks to which we are subject at every turn of our lives, including the tobacco smoke pollution in much of our environment, have a similar effect. Such a person is not properly described, in my view, as a person of abnormal fortitude.
42. I recognise that it may be, on one view, questionable whether the law should apply the 'eggshell skull 'test in cases of psychiatric illness. Lord Goff may be right in saying that, in cases where there is no physical injury, this is to translate a rule relating to compensation into a general principle of liability. The fact remains that the test is applied routinely in personal injury cases in our courts: one is well familiar with minor soft tissue injuries which have, according to medical evidence, caused the plaintiff acute psychiatric injury which, one is assured, is of real significance to the plaintiff, however surprising his or her reaction is to the objective finder of fact. It seems to me that logically the same considerations should apply where there is no physical injury. In a case such as the present the question of liability must be resolved, not by the exclusion of the eggshell skull principle, but by determining whether the absence of physical injury is fatal to the plaintiff's claim. That in turn depends on whether it falls within the category of ' nervous shock ' cases and, if not, whether liability can still arise in what may be generically called ' fear of disease ' cases.
Is this a "nervous shock" case?
43. The central issue in this case, accordingly, is not whether the defendants ought to have foreseen that the plaintiff would suffer psychiatric injury. It is whether the claim by the plaintiff comes within the category of "nervous shock" cases in which the courts have awarded damages for such psychiatric injury, even in the absence of any physical injury, and, if not, whether the plaintiff was nonetheless entitled to recover damages in respect of the reasonably foreseeable psychiatric illness which was the consequence of his having been negligently exposed to the risk of contracting mesothelioma. That further inquiry is necessary because of the care with which the courts have approached claims for psychiatric illness, unaccompanied by physical injury, arising out of alleged negligence: the reasons for that cautious approach are considered at a later point in this judgment.
44. "Nervous shock" would probably be regarded by medical experts today as an inexact expression, to put it no more strongly. The authorities, however, use it to define a set of circumstances which, when they give rise to a specific psychiatric disorder unaccompanied by physical injury that was the reasonably foreseeable consequence of a breach of duty on the part of the defendant, may lead to a finding of liability, provided the conditions laid down by Hamilton CJ in Kelly –v- Hennessy are met.
45. In considering what circumstances will amount to nervous shock in that context, one can begin by recalling that Brennan J, as he then was, in Jaensch –v- Coffey 155 CLR 549 said that psychiatric illness which was not induced by shock but by the experience of having to cope with bereavement did not entitle the injured person to damages. He gave the examples of the spouse worn down by caring for an injured wife or husband or the parent rendered distraught by the wayward conduct of a brain damaged child and who suffered psychiatric illness as a result. Even though the injury to spouse or child may have been the result of a tort, the affected spouse or parent will have no action in damages against the wrongdoer.
46. In Alcock, Lord Ackner said:
"Even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury was not induced by shock. Psychiatric illnesses caused in other ways such as the experience of having to cope with the deprivation consequent upon the death of a loved one attracts no damages…
"Shock, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system"
47. The plaintiffs in Kelly –v- Hennessy, and McLoughlin –v- O'Brian each sustained "nervous shock" in the sense indicated by Lord Ackner and were held entitled to recover because the resultant psychiatric illness was the foreseeable consequence of the wrongdoing which brought about the shock. In the present case, there was no shock of that nature: no sudden perception of a frightening event or its immediate aftermath, disturbing the mind of the witness to such an extent that a recognisable psychiatric illness supervened. If the plaintiff is entitled to recover damages, it must be because such damages can be recovered in respect of a psychiatric disorder brought about otherwise than by "nervous shock": in this case, by a combination of anger and anxiety which was the result of the plaintiff having been informed of his exposure to the risk of contracting mesothelioma because of his employers' negligence.
48. This, as Geoghegan J points out, is uncharted territory for our courts. It has been argued in this case that there is no reason in principle why the law should differentiate between a psychiatric illness which is induced by nervous shock and one such as the plaintiff in the present case has suffered, where both are the foreseeable result of the wrongdoing of the defendants. That issue must be resolved by determining whether or not the extension of the law to permit the recovery of damages in cases such as the present should be excluded on policy grounds.
49. I would have no hesitation in rejecting the proposition that, in considering whether particular categories of negligence which have not hitherto been recognised by judicial decision should be so recognised, policy decisions should play no part. That doctrine, in its most extreme form, is to be found in the speech of Lord Scarman in McLoughlin –v- O'Brian. However, as the speech of Lord Edmund-Davies in the same case demonstrated, judges have for long invoked policy considerations in determining where the boundaries of legal liability for negligence should be fixed. Thus, in principle it would have been possible to extend liability for negligence far beyond the traditional ambit of wrongs causing personal injuries or physical damage to property: the ground for not extending liability to all forms of economic loss (save where caused by negligent misstatement) is the undesirability of courts extending the range of possible liability in so uncontrolled and indeterminate a manner without any legislative intervention. Thus, if Irish courts were to adopt the same approach to the law of tort in cases of economic loss as the English courts have more recently adopted, it would be because of policy considerations which outweigh what otherwise be seen as a principled development of the existing law. (As the decision of this court in Glencar Exploration Plc –v- Mayo County Council (2002) 1 ILRM 481 made clear, the question as to whether economic loss is recoverable in cases other than those of negligent misstatement and within the categories laid down in Siney –v- Dublin Corporation (1980) IR 400 and Ward –v- McMaster (1988) IR 337 still awaits authoritative resolution.)
The policy issues.
50. Before considering the policy arguments that arise in the present case, it is right to say that although, as I have already pointed out, the courts have for long approached cases of psychiatric disorder on the basis that illness of that nature can be as real, painful and disabling as physical injuries, that is not to say that there are not special considerations applicable to such cases which must be borne in mind when the broader policy arguments are being considered.
51. Thus, as I have already noted, the law, while recognising that damage in the form of a recognisable psychiatric disorder is compensatable, does not permit the recovery of damages for mental anguish or grief which results from a bereavement or injury to a member of one's family caused by another's wrong. It is clear, however, that grief or mental anguish of that nature can result in recognisable psychiatric illnesses such as a reactive depression, and, in the light of developments in psychiatric medicine in recent decades, it must surely be questionable whether the inflexible boundary drawn by the law between recognisable psychiatric conditions which are compensatable and grief or mental anguish, which is not, is entirely logical. The fact that the latter category is not compensatable is because the courts have adopted a pragmatic approach and have left it to the legislature to determine when, and to what extent, such undoubted suffering should be the subject of an award of damages.( As under s49 of the Civil Liability Act, 1961)
52. Secondly, it is an inescapable fact that, because psychiatric illness is frequently less susceptible to precise diagnosis, the courts may have to adopt a more circumspect approach to such cases. Thirdly, the phenomenon, familiar to all judges and practitioners who have been concerned in personal injury cases, that the prospect of compensation at a subtle and subconscious level does nothing to assist a plaintiff's recovery from physical injury and may positively impede it, can arise even more acutely in cases of alleged psychiatric illness.
53. Again, as pointed out by Lord Steyn in his instructive discussion of the problem in White, the abolition or relaxation of the special rules governing the recovery of damages for psychiatric harm would greatly increase the class of person who can recover damages in tort and may result in a burden of liability on defendants disproportionate to the wrongful conduct involved. He cites the example of motorcar accidents with may involve a momentary lapse of concentration.
54. However, the policy arguments in the present case against a finding of liability for psychiatric injury are not confined to those factors or the so called "floodgates" factors, i.e., the possibility of the courts being swamped with trivial and unmeritorious claims, imposing particular strains on the legal system and making severe demands on judges who have to segregate serious claims from the trivial or even fraudulent. That is not to say that such considerations may not be important, but, in my view, there are specific policy considerations which, in the case of what can be conveniently catagorised as "fear of disease" cases, such as the present, argue even more powerfully against the imposition of liability.
55. There is first the undesirability of awarding damages to plaintiffs who have suffered no physical injury and whose psychiatric condition is solely due to an unfounded fear of contracting a particular disease. A person who prefers to rely on the ill informed comments of friends or acquaintances or inaccurate and sensational media reports rather than the considered view of an experienced physician should not be awarded damages by the law of tort. As McNulty J put it, delivering the judgment of the Appellate Court of Illinois in Majca –v- Beekil 682 NE 2D 253:
"Where hysterical fear of disease is sufficiently widespread, and popular knowledge concerning its etiology is limited, a plaintiff may foreseeably experience severe emotional distress without medically verifiable evidence of a substantially increased risk of contracting the disease. Most courts have held that recovery for fear of disease should not extend to such foreseeable fears, because, as commentators have noted, such broad recovery rewards ignorance about the disease and its causes."
56. The second policy argument is closely related to that first consideration. It relates to the implications for the health care field of a more relaxed rule as to recovery for psychiatric illness which were summarised as follows by Baxter J giving the opinion of the majority of the Californian Supreme Court in Potter and Others –v- Firestone Tyre and Rubber Company 25 Cal Rptr 2d 550:
"Access to prescription drugs is likely to be impeded by allowing recovery of 'fear of cancer' damages in negligence cases without the imposition of a heightened threshold. To wit, thousands of drugs having no known harmful effects are currently being prescribed and utilised. New data about potentially harmful effects may not develop for years. If and when negative data are discovered and made public, however, one can expect numerous law suits to be filed by patients who currently have no physical injury or illness but who nonetheless fear the risk of adverse effects from the drugs they used. Unless meaningful restrictions are placed on this potential plaintiff class, the threat of numerous large, adverse monetary awards, coupled with the added cost of insuring against such liability (assuming insurance would be available) could diminish the availability of new, beneficial drugs or increase their price beyond the reach of those who need them most."
57. It was also pointed out that there would also be serious implications for medical negligence cases grounded on the fear of the plaintiffs having contracted a disease as the result of having been prescribed a particular drug.
58. At an earlier point in this judgment, I expressed the view that the law would be in an unjust and anomalous state if a plaintiff who was medically advised that he would probably suffer from mesothelioma as a result of his negligent exposure to asbestos could not recover damages for a recognisable psychiatric illness which was the result of his being so informed. I am also satisfied, however, that in cases where there is no more than a very remote risk that he will contract the disease, recovery should not be allowed for such a psychiatric illness. That is because the policy considerations which I have summarised point clearly to the necessity for imposing some limitation on the number of potential claims which might otherwise come into being.
59. Claims for emotional distress arising out of exposure to asbestos came before the United States Supreme Court in Consolidated Rail Corporation –v- Gottshall 512 US 532, and Metro North Commuter Railroad Company –v- Michael Buckley 117 SCT 2113. In both cases, a majority of the court concluded that it was an essential precondition to the recovery of damages for emotional distress under the Federal Employers Liability Act that the plaintiff should have sustained a "physical impact" and that the plaintiff's contact in each case with asbestos laden insulation dust did not constitute such a "physical impact". Again, the majority of the court rested their conclusions on policy considerations, Breyer J observing in the latter case that:
"…the common law in this area does not examine the genuineness of emotional harm case by case. Rather, it has developed recovery permitting categories the contours of which more distantly reflect this, and other, abstract general policy concerns. The point of such categorisation is to deny courts the authority to undertake a case by case examination."
60. A similar approach was adopted by the Supreme Court of Texas in Temple – Inland Forest Products Corporation –v- Carter and Another 993 SWR 2D. Delivering the unanimous judgment of the Court, Hecht J, having referred to Buckley, went on to say
"A person exposed to asbestos can certainly develop serious health problems, but he or she also may not. The difficulty in predicting whether exposure will cause any disease and if so, what disease and the long latency period characteristic of asbestos related diseases, make it very difficult for judges and juries to evaluate which exposure claims are serious and which are not. This difficulty in turn makes liability unpredictable, with some claims resulting in significant recovery while virtually indistinguishable claims are denied altogether. Some claimants would inevitably be over- compensated, when, in the course of time, it happens that they never develop the disease they feared, and others would be under compensated when it turns out that they developed a disease more serious even than they feared. Also, claims for exposure could proliferate because in our society, as the Supreme Court observed, 'contacts, even extensive contacts, with serious carcinogens are common.' Indeed, most Americans are daily subjected to toxic substances in the air they breathe and the food they eat. Suits for mental anguish damages caused by exposure that has not resulted in disease would compete with suits for manifest diseases for the legal system's limited resources. If recovery were allowed in the absence of present disease, individuals might feel obliged to bring suit for such recovery prophylactically, against the possibility of future consequences from what is now an inchoate risk. This would exacerbate not only the multiplicity of suits but the unpredictability of results".
Conclusions.
61. I am, accordingly, 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 their employers, where the risk is characterised by their medical advisors as very remote.
62. I would add two final observations. First, we are not in this case concerned with the question as to whether an employer should be held liable where it is reasonably foreseeable that an employee might suffer a nervous breakdown because of the stress and pressures of his workload, an issue resolved in favour of the plaintiff by the English High Court in Walker –v- Northumberland County Council (1995) 1 All ER 737. Secondly, the claim of the plaintiff in the present case was grounded on breach of statutory duty in addition to common law negligence. It is clear, that in the absence of any specific statutory provision entitling the plaintiff to recover damages for psychiatric injury, the same principles as to liability must apply.
63. I would allow the appeal and substitute for the order of the High Court an order dismissing the plaintiff's claim.
No. 80/2002
Keane C.J.
Denham J.
Murray J.
Hardiman J.
Geoghegan J.
BETWEEN/
Plaintiff/Respondent
Defendants/Appellants
JUDGMENT of Mr. Justice Geoghegan delivered the 21st day of February 2003.
Introduction
64. This appeal raises an important question which has not been considered by this court before, namely, whether and if so to what extent and subject to what limitations an action may lie in negligence where the sole injury for which damages are sought to be recovered is a psychiatric condition resulting from fear of contracting an illness (in this case asbestos related diseases) in the future as a consequence of the alleged negligent acts and omissions. It is conceded by the defendants/appellants that the plaintiff/respondent was negligently exposed to asbestos dust but the medical evidence was to the effect that the risk of contracting any serious or fatal disease as a consequence thereof is remote. Nevertheless it has been found as a fact by the trial judge that the plaintiff suffered from severe worry and anger which resulted in a psychiatric condition and the plaintiff has been awarded substantial damages.
65. I will return to it later in the judgment, but I should mention in passing at this stage that the plaintiff alleged that he had heard of a workmate, a Mr. O'Connor, contracting an asbestos related disease and, indeed, subsequently dying. It was never established in evidence what the illness of Mr. O'Connor was or the cause of his death. The medical advice which the plaintiff received was that the danger of contracting any disease as a consequence of this asbestos exposure was minimal and, therefore, objectively, at least, the extreme worry leading to psychiatric illness was irrational.
66. Questions of law obviously arise as to what in these circumstances was the duty of care, as to what relevant injury might be regarded as having been reasonably foreseeable and as to whether for public policy or other reasons the courts should regard the damage claimed in this case to be irrecoverable. The question of "control mechanisms" as they are often described in the case law arises not only in relation to the last question but also in relation to the duty of care and the question of foreseeability. That is a brief sketch of the legal issues involved. Obviously, I will return to them in due course but it is essential to treat first of the evidence which was before the High Court and the terms of the judgment of the trial judge.
The evidence and the judgment
67. In evidence the plaintiff described similar feelings of anxiety and annoyance as a consequence of his learning of his exposure to asbestos. When it began to dawn on him that he was working with asbestos he took legal advice because he had read articles about it. He also went to his GP, Dr. Coodavia. The doctor gave him tablets for anxiety. He later attended the psychiatrist, Dr. Griffin, and the respiratory surgeon, Professor Clancy. In answer to the question as to whether they had been able to give him any help he replied as follows:-
"They tell me not to be worried and all that, but then people – I know they are professional people, but when I go out the door, I am back to square one, so it doesn't matter what they tell me. I was being exposed to asbestos in 85/86 and that's in me mind."
He was then asked what was his principal fear and he said "death". He indicated that he tried to forget about his anxiety when he went to work and that at times his sleep was affected. His wife was not well and had to have a mastectomy and to some extent he blamed himself about this. He underwent a pulmonary function test and also psychiatric counselling. He accepted that Professor Clancy's advice to him was that there was merely "a minimal risk of something". He admitted he had no current disease. At p. 38 of the transcript of the first day O'Neill J., the trial judge, summed up the position in a question to Mr. Fletcher which I quote:-
"Q. Mr. Justice O'Neill: There is nothing wrong with you at the moment Mr. Fletcher, but you fear that there may be a risk that something may go wrong?
A. Yes, that is right."
68. Mr. Fletcher admitted that he went to a solicitor first because after looking at television programmes about asbestos he thought he should get legal advice. Mr. Fletcher was cross-examined by Mr. McCullough on the basis that he appeared to have gone to Dr. Clancy before he went to his GP, Dr. Coodavia. Mr. Fletcher did not accept this. He thought that he might have heard in talk that Dr. Clancy was the expert. He admitted that Dr. Clancy had told him the risk was minimal. Dr. Clancy had told him that even though he was a non-smoker, passive smoking was more of a risk to him than the exposure to asbestos. Mr. Fletcher admitted that he might have first suggested that he needed psychiatric treatment. He also admitted to Mr. McCullough that Dr. Griffin, the psychiatrist, had also tried to explain to him that he should not really be worrying himself.
69. In evidence Professor Clancy said that there was virtually no risk in this case of asbestosis but there was the usual minimal risk of mesothelioma. Dr. Clancy accepted that as a matter of probability the fibres would have been inhaled. He said however that asbestosis depended on a fairly high exposure over a long time whereas mesothelioma was quite different. Even cursory exposure increases the risk so that it is not dose dependent. Dr. Clancy did not accept that all persons who are exposed to asbestos remained in similar anxiety. Some were heartened by optimistic advice given and others remained in a state of anxiety.
70. Dr. Griffin gave evidence that he thought that the plaintiff had been traumatised by the knowledge that he had worked in an undetected situation with asbestos and it was very difficult to reassure him about his future. He was asked in terms of psychiatric illness where he would put the plaintiff. His answer was that on both occasions on which he saw him he thought he was severely anxious and had suffered from anxiety neurosis or more correctly reactive anxiety neurosis. He said that that was a psychiatric illness. Dr. Griffin elaborated on that and said it would come within the international classification of psychiatric diseases. The plaintiff's condition was moderate to severe. He had the usual feelings of anger and anxiety. Dr. Griffin said medication would be helpful in the form of an anti anxiety agent like "Lexotan". In cross-examination it was put to Dr. Griffin that no amount of medical advice can displace the irrational anxiety it would seem. Dr. Griffin answered that he was not sure the anxiety was all that irrational. In other words, the plaintiff believed he had been exposed to asbestos and that in time he might develop asbestos related diseases or he might not and he carried that worry with him. Dr. Griffin told the learned trial judge that he thought the plaintiff was suffering constantly to some degree perhaps to a small degree and every now and then episodically he became acutely anxious and stressed. Dr. Griffin thought that this would be ongoing. The plaintiff could not be reassured on foot of the slight chance of disease. He still carried that worry and it was likely to remain in his mind indefinitely.
71. The judgment delivered by O'Neill J. on the 15th of June, 2001 reflected the detailed legal submissions which had been made to him by counsel on behalf of the appellants. The learned trial judge summed up the defendants' case as argued as follows:-
"The defendants called no evidence and they made submissions on the following basis. Firstly, that the plaintiff's anger and anxiety reaction, or that complex, was not caused by the exposure to asbestos dust itself but was, so to speak, caused by his exposure to the knowledge of it which he gained through the media in late 1996. They then, the defendants, rely upon the authority of the case of the CJD Litigation Group B v. The Medical Research Council 2000 Lloyds Reports, Medical Reports 161 to say the following:-
'That the plaintiff is to be treated as a secondary victim in so far as this claim is concerned, and that he must, therefore, prove that he has been suffering from a recognised psychiatric illness that was foreseeable to the defendants at the time of the alleged wrong.
Secondly, that in a person of normal fortitude that the plaintiff's bad reaction, that is to say his bad anxiety reaction, was not something that would have been foreseeable to the defendants at the relevant time'."
72. The learned trial judge observed that that raised an issue of law which he found it unnecessary to resolve because, as he pointed out, essentially what counsel for the appellants was arguing was that the plaintiff should be regarded as being in the category of persons who would have to meet the tests laid down in Kelly v. Hennessy [1995] 3 IR 253. But the learned judge went on to express the view that it did not matter whether he was "a primary victim" or a "secondary victim" because in either case the relevant tests would have been satisfied. He said that the plaintiff had been suffering from a recognisable psychiatric illness and that that was brought about by the shock and upset that the plaintiff suffered as a result of his learning through the media "in the sensationalist way that that would have occurred" of the existence of his problem. O'Neill J. was satisfied that the actual problem itself was caused by the appellants' "original omission". The judge went on to say that any other view was unreal, that the essential ingredient in the development of the plaintiff's illness i.e., his psychiatric illness was the exposure to the asbestos dust and not the exposure to the knowledge of it. The judge accepted that the plaintiff's exposure to the knowledge of it was the trigger factor which started the complaint but that did not mean that the psychiatric illness did not arise from the exposure to the asbestos dust. The learned trial judge indicated that he was happy to assume that the plaintiff was in an analogous position to the plaintiff in Kelly v. Hennessy. In other words psychiatric illness was foreseeable and that that being so, the appellants owed the plaintiff a duty of care not to cause him a reasonably foreseeable injury. The judge laid emphasis on the fact that the appellants were the plaintiff's employer.
73. O'Neill J. then went on to deal with the argument that in relation to foreseeability it is necessary to consider the position of a person of "normal fortitude". The learned trial judge, however, took the view that it was reasonably foreseeable that a person of "normal fortitude" would suffer from the kind of anxiety described in the evidence and would develop the psychiatric condition proved. In this connection he seemed particularly to rely on the CJD case. The learned judge then said the following:-
"It was entirely foreseeable in my view that the plaintiff would learn of this condition at some stage from the media or some other source, probably in circumstances which would sensationalise the problem and cause him the kind of reaction which he unfortunately had suffered. I think that was foreseeable. I think it was also foreseeable that in somebody of ordinary fortitude, a normal person, in other words, which the plaintiff was, prior to these events, this would produce an anxiety reaction and that is precisely what happened."
74. The plaintiff, in the view of the judge, had satisfied all the relevant tests whether he was to be treated as a primary victim or a secondary victim. O'Neill J. assessed general damages at IR£45,000 and added a further sum of special damages of £3,760.
The Law
75. The learned trial judge decided this case in favour of the plaintiff/respondent on the basis that the plaintiff in relation to his psychiatric injury had passed the test of "reasonable foreseeability". There is no doubt that the passing of such a test was an essential requirement. But as is clear from all the leading cases in common law jurisdictions, "reasonable foreseeability" is not the only determining factor. Elements such as proximity (a concept given wide meaning in the case law), reasonableness in the imposition of a duty of care and public policy may all play a role. Furthermore, in the law of tort there is a double aspect to "reasonable foreseeability". Foreseeability is relevant in considering whether there is a duty of care in the first instance and it again becomes relevant in considering, whether, assuming there was such a duty of care and a breach thereof, a particular item of damage alleged to have resulted is recoverable. Indeed, it would seem from the authorities that the test for each type of foreseeability is different. As was accepted by the learned trial judge, the test of foreseeability for the purposes of liability to a non-primary victim at least for psychiatric injury is based on a person of "normal fortitude". However, when it would come to assessing damages and the application of reasonable foreseeability to items of damage, the "thin skull" principle would come into play.
76. In an ordinary motor accident or factories injury case or even indeed a medical negligence action the trial judge does not normally have to consider aspects of the tort of negligence other than reasonable foreseeability. The "neighbour" of a motorist for the purposes of negligence liability is the person whom it can be reasonably foreseen he may injure through the negligent use of a motor vehicle. It has always been considered reasonable that liability should arise in such circumstances and reasonable foreseeability and proximity become effectively merged. In the vast majority of negligence actions, therefore, a close analysis of the different constituents of the tort i.e. the duty of care, the breach of that duty and the damage which results is not necessary.
77. I now turn to consider the arguments made by Mr. Dermot Gleeson, S.C., counsel for the appellants at this appeal or more precisely to consider the question as to whether an award of damages ought to have been made at all if the trial judge had addressed his mind to the correct questions.
78. Mr. Gleeson's primary submission was that these cases were governed by the decision in Kelly v. Hennessy cited above. In that case the plaintiff's family had been involved in a serious car crash caused by the negligence of the defendant. The plaintiff's husband and one of her daughters suffered permanent brain damage. The plaintiff had not been present at the accident but had learned of it by a telephone call. It was accepted that the plaintiff suffered as a consequence from post-traumatic distress disorder. It was held by this court that where a plaintiff came on the immediate aftermath of an accident either at the scene or in hospital involving a person with whom the plaintiff had a close relationship, a duty of care arose. But it had been argued before the court on behalf of the defendant that psychiatric illness was in a different category from physical injury and that damages could only be recovered for it in very limited circumstances. All three judges of the court were in agreement that damages were recoverable but the principal judgment was that of Hamilton C.J. with whom Egan J. agreed, Denham J. writing a separate judgment. In the judgment of Hamilton C.J. it was held that in order to recover damages for nervous shock a plaintiff must establish
(a) that he or she actually suffered a recognisable psychiatric illness;
(b) that such illness was shock induced;
(c) that the nervous shock was caused by the defendant's act or omission;
(d) that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff;
(e) that the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general.
79. Without necessarily endorsing the terminology "primary victim" and "secondary victim" which has received judicial and academic criticism, it is not entirely clear whether the judgment of Hamilton C.J. applies only to a so-called secondary victim or whether it applies to a claim for damages for psychiatric injury only brought by any victim whether primary or secondary. It must be remembered that the plaintiff in that case was a so called secondary victim and, indeed, that terminology is used in the judgment of Denham J. Furthermore, Hamilton C.J. when laying down the principle that a plaintiff must establish that his or her recognisable psychiatric illness was "shock-induced" relied for support on passages contained in a judgment of Brennan J. (as he then was) in the Australian High Court case of Jaensh v. Coffey (1984) 155 C.L.R. 549 in which that learned judge said as follows:-
"A plaintiff may recover only if the psychiatric illness is the result of physical injury inflicted on him by the defendant or if it is induced by shock. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant's carelessness."
80. The former Chief Justice, however, then goes on to cite two examples which Brennan J. gave in support of that proposition, the relevant passages reading as follows:-
"The spouse who is being worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result goes without compensation: a parent made distraught by the wayward conduct of a brain damaged child and who suffers psychiatric illness as a result has no claim against the tortfeasor liable to the child."
81. The two examples given clearly relate to so called secondary victims. But whereas Mr. Gleeson's main argument is that Kelly v. Hennessy governs all claims for psychiatric damage he makes the fallback argument that even if he were wrong about that, all five respondents on this appeal were "secondary victims" in the sense that their psychiatric conditions arose from anxieties which in turn were sparked off not, as he would argue, from the exposure to asbestos but from learning of the exposure to asbestos and the possible dangers therefrom. With reference to Kelly v. Hennessy also, Mr. Gleeson says that the psychiatric condition in these cases was not "nervous shock" within the meaning of Kelly v. Hennessy in that it did not arise out of some trauma and secondly, that even if such psychiatric condition could ever be characterised as "nervous shock" within the meaning of the case law it was not reasonably foreseeable as being wholly irrational. His argument on irrationality has a second leg to it also. Quite apart from arguing that having regard to the medical advice as to a minimal risk, the irrational worry leading to a psychiatric injury could not have been reasonably foreseen, he says that even if it could have been reasonably foreseen, as a matter of policy, the court should not award damages for irrationality, or alternatively the courts should hold that to permit the recovery of such damages would be unreasonable.
82. I take the view that Kelly v. Hennessy does not govern these appeals. Whether one adopts the wider or narrower interpretation of Kelly v. Hennessy to which I have already referred, the decision should only be taken to relate to accident damage. Given that the courts in all common law jurisdictions have always shown caution in relation to the circumstances in which damages for psychiatric injury can be recovered it is important to consider each kind of liability situation separately. Cases of a mother suffering from great shock on learning that her child has been killed in an accident have almost no factual connection with cases involving fear of disease not actually contracted arising from negligent exposure to such disease. Unless one puts all psychiatric injury on an exact par with all physical injury it makes little or no sense to regard these two examples as being analogous to one another in any relevant way.
83. That being my view, I consider that this court is into virgin territory and that it must consider unguided by any Irish precedent whether damages were properly recoverable in this case. For this purpose I think it helpful to review a number of authorities cited in the appeals, not necessarily on the basis that they give direct guidance in these cases as many of them are more like Kelly v. Hennessy but rather because of the recognition shown by judges in those cases of the necessity for control mechanisms in relation to the recovery of damages for psychiatric disease. I will also be referring to a small number of cases involving fear of illness and, therefore, directly in point, but it is fair to say that they are of limited assistance only.
84. The Irish courts historically took a progressive attitude to psychiatric illness and did so at a time when it would have been treated in many quarters with some scepticism. In Bell v. the Great Northern Railway Company of Ireland (1890) 26 LR Ir 428 the plaintiff had been a passenger in an excursion train when the train proved to be too heavy to be carried by the engine up an incline and was divided by the railway company's staff, the carriage occupied by the plaintiff remaining attached to the engine. The dislodged part of the train descended the incline with great speed and then the engine was reversed with the remaining carriages in which the plaintiff was seated attached but it also went down at a higher speed and stopped with a violent jerk. The plaintiff suffered great fright and nervous shock as a consequence. The case had been heard by a judge and jury and the judge had charged the jury that if great fright was in their opinion a reasonable and natural consequence of the circumstances in which defendants had placed the plaintiff and she was actually put in fright by these circumstances and if injury to her health was, in their opinion, a reasonable and natural consequence of such fright and was actually occasioned thereby, damages for such injury would not be too remote and might be given for them. A court of three judges in the Exchequer Division presided over by Palles C.B. held that the trial judge had correctly instructed the jury on the liability of the defendants. In so holding, the court followed an earlier decision in 1884 of the Irish Court of Appeal (unreported) in the case of Byrne v. Great Southern and Western Railway Co. of Ireland and refused to follow a Privy Council decision to the opposite effect in the Victorian Railway Commissioners v. Coultas 13 App Cas 222. The Bell case has been regarded as seminal and has been cited in subsequent Irish, English and Australian courts. It should be noted in passing, however, that it is a clear case of nervous shock directly arising from a particular incident involving trauma.
85. The next Irish case of any real significance in relation to damages for psychiatric injury was Mullally v. Bus Éireann [1992] ILRM 722. In that case Denham J. followed Bell v. The Great Northern Railway Company of Ireland and held in what was clearly a so called "secondary victim" case, that the shock arose from aftermath news of injury involving the plaintiff's family, that the bus company's duty of care extended to injuries which were reasonably foreseeable and that this psychiatric illness caused by nervous shock was itself reasonably foreseeable and damages for it could be recoverable. That again is an accident case analogous to Kelly v. Hennessy. The decision of Denham J. corresponds with the recognised line of authorities in other common law jurisdictions treating of nervous shock. Denham J. did not go into the more general question of whether and in what circumstances there were limits on the recovery of damages for psychiatric injuries. She did, however, refer to McLoughlin v. O'Brian [1982] 2 All ER 298 and in particular to the speech of Lord Bridge of Harwich in that case. I will be returning to it in due course.
86. What does emerge from the English and Australian authorities and, indeed, U.S.A. cases is that there are control mechanisms which the courts apply to actions for damages for psychiatric conditions and for that reason, I intend to consider five cited English and Australian cases in chronological order for their relevance on the general principles to be applied even though they are not "fear of disease" cases.
87. The first of these is McLoughlin v. O'Brian already referred to. That was a case where the House of Lords reversed the English Court of Appeal and allowed the plaintiff to recover damages in the following circumstances. The plaintiff's husband and three children had been involved in a motor accident when their car was in collision with a lorry driven by one defendant and owned by the other. The plaintiff, who was at home at the time two miles away was told of the accident two hours after it happened by a neighbour who took her to hospital to see her family. When she arrived she learned that her youngest daughter had been killed and saw her husband and the other children and the severe injuries caused. She claimed that the impact of what she heard and saw caused her severe shock resulting in psychiatric illness. It is clear that in that case there was evidence that the plaintiff was suffering from depression and change of personality affecting her abilities as a wife and mother. The trial judge dismissed the action on the grounds that the defendants owed no duty of care to the plaintiff because the possibility of her suffering injury by nervous shock in the circumstances had not been reasonably foreseeable. The Court of Appeal affirmed that decision but on a quite different basis. The appellate court held that although it was reasonably foreseeable that injury by shock would be caused to a wife and mother in the position of the plaintiff, it was settled law that the duty of care that was owed by the driver of a vehicle was limited to persons or owners of property at or near the scene of an accident and directly affected by his negligence, that considerations of public policy limited the duty of care in that way and did not require it to be extended and that accordingly, since the plaintiff had been two miles from the accident and had not learned of it or seen its consequences until two hours later, she was not entitled to recover damages for nervous shock. That basis of the Court of Appeal's decision is important for the purposes of understanding the ultimate decision by the House of Lords. The House of Lords allowed the appeal agreeing with the Court of Appeal that the nervous shock would have been reasonably foreseeable but disagreeing that policy considerations should be applied so as to deny a duty of care and that, accordingly, the plaintiff was entitled to recover. It is important and relevant however to consider the principles which their Lordships recognised as existing in arriving at their decision. Lord Wilberforce came to the conclusion on the facts of that case that the plaintiff fell within the boundaries of the law so drawn and that she was entitled to succeed. But what is important, for the purposes of these appeals is that he made it quite clear that in psychiatric claims control mechanisms were necessary in determining the limits of a duty of care and the limits of the types of damage recoverable. He said this at the bottom of p. 421:
"But, these discounts accepted, there remains, in my opinion, just because 'shock' in its nature is capable of affecting so wide a range of people a real need for the law to place some limitation upon the extent of admissible claims. It is necessary to consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused. As regards the class of persons, the possible range is between the closest of family ties – of parent and child, or husband and wife – and the ordinary bystander. Existing law recognises the claims of the first: it denies that of the second, either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large. In my opinion, these positions are justifiable, and since the present case falls within the first class, it is strictly unnecessary to say more. I think, however, that it should follow that other cases involving less close relationships must be very carefully scrutinised, I cannot say that they should never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident."
88. While obviously some of that passage is directly relevant to the facts of that case involving psychiatric injury arising out of an accident to somebody who was not at the scene of the accident, its relevance to this appeal is the acknowledgment by Lord Wilberforce that control mechanisms (an expression not used by him but used in other cases) are necessary in this area. In an earlier part of his speech at p. 420 he referred to the two judgments delivered in the Court of Appeal. He pointed out that Stephenson LJ had considered that the defendants owed a duty of care to the plaintiff, but that for reasons of policy the law should stop short of giving her damages: it should limit relief to those on or near the highway, at or near the time of the accident caused by the defendant's negligence. Griffiths LJ on the other hand had taken the view that although the injury to the plaintiff was foreseeable there was no duty of care. In his view the duty of care of drivers of motor vehicles was, according to decided cases, limited to persons and owners of property on the road or near to it who might be directly affected and the line should be drawn at this point. It is quite clear from Lord Wilberforce's next remarks that he was not querying either the view of Stepehenson LJ that in some cases reasons of policy may deny a plaintiff a remedy nor the view of Griffiths LJ that in some cases notwithstanding foreseeability there may be no duty of care. Indeed, he expressly said that he was impressed by both of those arguments but he then went on to make a pertinent observation.
"Though differing in expression, in the end, in my opinion, the two presentations rest upon a common principle, namely that, at the margin, the boundaries of a man's responsibility for acts of negligence have to be fixed as a matter of policy. Whatever is the correct jurisprudential analysis, it does not make any essential difference whether one says, with Stephenson LJ, that there is a duty but, as a matter of policy, the consequences of breach of it ought to be limited at a certain point, or whether, with Griffiths LJ, one says that the fact that consequences may be foreseeable does not automatically impose a duty of care, does not do so in fact where policy indicates the contrary. This is an approach which one can see very clearly from the way in which Lord Atkin stated the neighbour principle in Donoghue v. Stevenson [1932] AC 562, 580:
'Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected …'
This is saying that foreseeability must be accompanied and limited by the law's judgment as to persons who ought, according to its standards of value or justice, to have been in contemplation. Foreseeability, which involves a hypothetical person, looking with hindsight at an event which has occurred, is a formula adopted by English law, not merely for defining, but also for limiting, the persons to whom the duty may be owed and the consequences for which an actor may be held responsible. It is not merely an issue of fact to be left to be found as such. When it is said to result in a duty of care being owed to a person or class the statement that there is a duty of care denotes a conclusion into the forming of which considerations of policy have entered. That foreseeability does not of itself, and automatically, lead to a duty of care is I think, clear".
89. Lord Wilberforce then cites some cases in which that principle is made clear and he refers in particular to a dictum of Lord Reid in McKew v. Holland and Hannen & Cubitts (Scotland) Limited [1969] 3 All ER 1621, 1623:
"A defender is not liable for the consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee."
90. Lord Edmund-Davies while likewise rejecting the view of the Court of Appeal that policy considerations should deny recovery by the plaintiff nevertheless went on in strident terms to disagree with the opinion of Lord Bridge of Harwich in the same case where the latter doubted that any regard should have been had to policy considerations by the Court of Appeal. Lord Edmund-Davies was firmly of the view that reasonable foreseeability was not the only test of the validity of a claim brought in negligence. The question of the existence of a duty of care could involve policy questions also. While agreeing that any invocation of public policy calls for the closest scrutiny that does not mean that it should not be invoked to deny a duty of care or a heading of damage in particular cases. He cited with approval the words of MacDonald J. in Nova Mink Limited v. Trans Canada Airlines [1951] 2 D.L.R. 241-256:
"There is always a large element of judicial policy and social expediency involved in the determination of the duty-problem however it may be obscured by the use of tradition or formulae."
Lord Edmund-Davies went on to say the following:
'I accordingly hold, as Griffiths LJ. … did, that 'the test of foreseeability is not a universal touchstone to determine the extent of liability for the consequences of wrongdoing'.
Authority for that proposition is both ample in quantity and exalted in status."
91. Lord Russell of Killowen in a short speech made it clear that he "would not shrink from regarding in an appropriate case policy as something which may feature in a judicial decision", but he did not think the policy considerations should prevent the plaintiff succeeding in that case.
92. I do not find it necessary to review the opinions of Lord Scarman and Lord Bridge, both of whom in their own different ways were more sceptical as to the legitimacy of introducing policy considerations at all, but it must be remembered that even in their case these views were being expressed in the context of a nervous shock case where a plaintiff was not at the scene of an accident. They were not making observations that could be remotely relevant to a "fear of disease" case.
93. The next case in sequence is Jaensch v. Coffey already cited. This was an Australian case heavily relied on by Hamilton C.J. in his judgment in Kelly v. Hennessy cited above. In the Jaensch case a motor cyclist had suffered serious injury in a collision with a vehicle which was being driven negligently. His wife was not at the scene of the accident but saw him in hospital where the staff told her he was "pretty bad". The following day she was told that he was in intensive care and shortly thereafter that he had had a change for the worse. She was asked to come to the hospital as quickly as possible. In the event the husband survived but the wife brought an action for nervous shock. The High Court of Australia held on the facts that there was a duty of care and that the plaintiff was entitled to succeed. As in the McLoughlin case however, although in no sense is this case closely analogous to a "fear of disease" case, there are general principles of tort law stated in the judgments which are relevant. Gibbs CJ in his judgment pointed out that foreseeability is relevant to three different questions that may arise in an action for negligence - "whether there was a duty of care; if so, whether the defendant was negligent; and whether the defendant was liable for the kind of damage that resulted from the negligence" and he pointed out that this sometimes leads to confusion. The learned Chief Justice expressly agreed with the views of Lord Wilberforce in the McLoughlin case that foreseeability cannot be the sole criterion for the existence of a duty of care. There may also be considerations which ought to negative or reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. Gibbs C.J. said that this was clearly in line with Australian law and he referred to a judgment of Mason J. in Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 at p. 44. In adverting to the fact that there was a difference of opinion between the Law Lords in McLoughlin v. O'Brian as to the part played by policy in the formulation of the rule governing the recovery of damages for nervous shock Gibbs CJ made it clear that in his opinion, the view of Lord Wilberforce was "realistic and correct". He referred to the passage where Lord Wilberforce said that "foreseeability must be accompanied and limited by the law's judgment as to persons who ought, according to its standards or value or justice, to have been in contemplation."
94. I would express the view in passing at this stage, though I will obviously be returning to it, that if policy considerations are relevant in considering the extent of a duty of care in "nervous shock" cases arising out of accidents or traumas, such considerations would seem to be all the more necessary in the much vaguer cases where a condition considered psychiatric by the medical profession has arisen merely from worry that a disease might be contracted.
95. In considering the principle that reasonable foreseeability is separate from or at the very least only one element in the question of the existence of a duty of care, I have found particularly helpful the analysis by Deane J. in his judgment in the Jaensch case. In rather colourful language he pointed out that the common law duty to a "neighbour" had "scant in common with its new testament equivalent; both priest and Levite ensured performance of any common law duty of care to the stricken traveller when, by crossing to the other side of the road, they avoided any risk of throwing up dust in his wound" … in Donoghue v. Stevenson, the common law duty of care was defined, for the purposes of the law of negligence, as the duty to take reasonable care when it can be reasonably foreseen that one's 'acts or omissions' are likely to injure one's 'neighbour'. A 'neighbour' was identified as being in the view of the common law, a person who is 'so closely and directly affected by my act that I ought reasonably to have him in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question". The learned judge goes on to point out that under Lord Atkins' test there was an important proximity requirement "that constituted an overriding control of the test of reasonable foreseeability in the law of negligence" and that it was clear that the notion of proximity was not confined to mere physical proximity. Later on in his judgment Deane J. points out that the fact that as a practical matter any separate requirement of proximity i.e., separate from reasonable foreseeability is commonly disregarded does not mean that it does not exist as a matter of principle. The ordinary negligence cases which are heard day in, day out do not involve any analysis by the trial judge of the distinction between proximity and reasonable foreseeability. A passage at the top of p. 583 of the judgment of Deane J. is, I think, relevant to these appeals.
"It is not and never has been the common law that the reasonable foreseeability of risk of injury to another automatically means that there is a duty to take reasonable care with regard to that risk of injury … Reasonable foreseeability on its own indicates no more than that such a duty of care will exist if, and to the extent that, it is not precluded or modified by some applicable overriding requirement or limitation. It is to do little more than to state a truism to say that the essential function of such requirements or limitations is to confine the existence of a duty to take reasonable care to avoid reasonably foreseeable injury to the circumstances or classes of case in which it is the policy of the law to admit it."
96. A number of cases are cited in support of these propositions including well known cases such as Rondel v. Worsley [1969] 1 AC 191 and Hedley Byrne and Co. Limited v. Heller and Partners Limited [1964] AC 465."
97. Towards the bottom of p. 592 of the judgment Deane J. makes this pertinent observation:
"Unless one is to mutilate reasonable foreseeability to accord with operative but concealed considerations of policy, it must be acknowledged that the decided cases strongly support the view that the requirement of a relationship of proximity operates to impose particular criteria which must be satisfied by a plaintiff before a duty of care in respect of a reasonably foreseeable injury in the form of nervous shock will be held to have arisen in her or his favour."
98. That passage is relevant to these appeals because in my view, it was perfectly open to each of the trial judges to have found as they did, that the anxiety condition labelled by the medical profession as "psychiatric" arising from the worry of contracting asbestos disease was reasonably foreseeable notwithstanding medical advice to the effect that the risk of contracting such disease was minimal. To that extent, I would reject the arguments put forward by counsel for the appellants that in any sense the injuries in these cases must necessarily have been regarded as unforeseeable. But as Deane J. and other judges have pointed out this does not necessarily mean that there was a duty of care. At p. 604 of the judgment Deane J. observes as follows:
"Once mere psychiatric injury is accepted as sounding in damages for the purposes of the law of negligence and as being, in an appropriate case, reasonably foreseeable in the relevant sense, the duty of care in respect of a foreseeable risk of mere psychiatric injury is an independent and primary duty owed to the person at risk of such injury."
99. In his judgment in the same case Brennan J. at p. 564 sets out what he sees are the limits to actions for the recovery of damages for psychiatric illness. He said the following:
"A broadening of the test of foreseeability and a readier judicial acceptance of the foreseeability of shock induced psychiatric illness had combined to expand the scope of a defendant's liability beyond what it was thought to be half a century ago. Liability for negligence occasioning nervous shock has not been readily accepted, perhaps because the courts found evidence of psychiatric illness and of its aetiology to be too vague to warrant a finding of a causal relationship between psychiatric illness and careless conduct. Curial wariness of vague notions is as Sir Owen Dickson said, perhaps the 'reason that scorn of the law is more widespread among psychiatrists than anatomists': Jesting Pilate (1965), p. 18. The courts have insisted on proof of a demonstrable and readily appreciable cause of psychiatric illness – the cause itself being a result of the defendant's careless conduct – before damages for negligence occasioning psychiatric illness are awarded. A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by 'shock'. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant's carelessness. The spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result goes without compensation; a parent made distraught by the wayward conduct of a brain damaged child and who suffers psychiatric illness as a result has no claim against the tortfeasor liable to the child."
Later on in the judgment Brennan J. points out that a psychiatric illness induced by mere knowledge of a distressing fact is not compensatable.
100. What clearly emerges from the judgments in that case is that the control mechanism applied in the case of actions for pure psychiatric damage is that that particular kind of damage must have been reasonably foreseen. This is in line with the judgment of this court in Kelly v. Hennessy.
101. The next case in sequence is Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310. In that case the defendant was responsible for the policing of a football match at which because of overcrowding ninety-five people died and many others sustained crushing injuries. Live pictures of the disaster could be seen on television. The plaintiffs were all related to or friends of spectators. Some witnessed the events from other parts of the stadium, one saw them on television and went to search for his missing son and others were at home watching the events or heard of them from friends or through radio reports but only later saw recorded pictures. All of these plaintiffs claimed damages for nervous shock. They all claimed that they had sustained psychiatric illness as a consequence of the shock. At the trial nine of the plaintiffs who were either parents, spouses or siblings of the victims and who were eye witnesses of the disaster or who saw it live on television were held to be entitled to damages. The remaining six were excluded. The Court of Appeal held that none of the plaintiffs were entitled to succeed. There was then a further appeal to the House of Lords which was dismissed. It was held by the House of Lords that in order to establish a claim in respect of psychiatric illness "resulting from shock" it was necessary to show that the relationship between the plaintiff and the defendant was sufficiently proximate; that the class of persons to whom a duty of care was owed as being sufficiently proximate was not limited by reference to particular relationships such as husband and wife or parent and child but was based on ties of love and affection, the closeness of which would need to be proved in each case; and that a plaintiff also had to show propinquity in time and space to the accident or its immediate aftermath, and that in the cases of the plaintiffs who had been present at the match the mere fact that the relationship was shown was insufficient to give rise to a duty of care that the viewing of the disaster on television could not be said to be equivalent to being within sight and hearing of the event or its immediate aftermath and that, accordingly, the plaintiffs' claims failed.
102. I am referring to this case only for the purposes of again eliciting some general principles that might be applicable to other cases in which claims are made for psychiatric damage. As has been pointed out in later cases there are great problems arising out of the actual decision and I am not in any way intending either to approve or disapprove of it. The idea that as between siblings the plaintiff would have to prove special love and affection for the brother or sister in question with that perhaps being hotly opposed in cross-examination is certainly not a desirable vista, if it could be avoided in other ways. There are, however, relevant general principles referred to in the speeches of the law lords. Lord Ackner, for instance, clearly accepts the general principle "the application simpliciter of the reasonable foreseeability test is, today, far from being operative". He goes on at p. 400 to set out principles which may not be entirely consistent with the later House of Lords decision in Page v. Smith [1996] 1 AC 155 which itself has been criticised and to which I will refer. But whether one accepts them in full or not I think it helpful to set them out as stated by Lord Ackner because they highlight factors which this court might have to consider in determining whether there was a duty of care in the quite different circumstances of these appeals. The five principles as set out are as follows:
"(1) Even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury was not induced by shock. Psychiatric illness caused in other ways, such as by the experience of having to cope with the deprivation consequent upon the death of a loved one, attracts no damages. Brennan J. in Jaensch v. Coffey 155 C.L.R. 549, 569 gave as examples, the spouse who has been worn down for caring for a tortuously injured husband or wife and who suffer psychiatric illness as a result, but who, nevertheless, goes without compensation; a parent made distraught by the wayward conduct of a brain damaged child and who suffers psychiatric illness as a result also has no claim against the tortfeasor liable to the child.
(2) Even where the nervous shock and the subsequent psychiatric illness caused by it could both have been reasonably foreseen, it has been generally accepted that damages for merely being informed of, or reading, or hearing about the accident are not recoverable. In Bourhill v. Young [1943] AC 92, 103 Lord MacMillan only recognised the action as lying where the injury by shock was sustained 'through the medium of the eye or the ear without direct contact'. Certainly, Brennan J. in his judgment in Jaensch v. Coffey recognised:
'A psychiatric illness induced by mere knowledge of a distressing fact is not compensatable; perception by the plaintiff of the distressing phenomenon is essential'…
(3) Mere mental suffering, although reasonably foreseeable, if unaccompanied by physical injury, is not a basis for a claim for damages……
(4) As yet there is no authority establishing that there is liability on the part of the injured person, his or her estate, for mere psychiatric injury which was sustained by another by reason of shock, as a result of a self-inflicted death, injury or peril of the negligent person, in circumstances where the risk of such psychiatric injury was reasonably foreseeable. On the basis that there must be a limit at some reasonable point to the extent of the duty of care owed to third parties which rests upon everyone in all his actions, Lord Robinson, the Lord Ordinary, in his judgment in the Bourhill case … did not view with favour the suggestion that a negligent window cleaner who loses his grip and falls from a height impaling himself on spike railings would be liable for the shock induced psychiatric illness occasioned to a pregnant woman looking out of the window of a house situated on the opposite side of the street.
(5) 'Shock', in the context of this cause of action involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system."
103. I find the last of those principles particularly instructive. There is no doubt that in a "fear of disease" case particularly when the disease is most unlikely to occur, psychiatric illness caused in such circumstances cannot be said to have arisen suddenly.
104. The speech of Lord Oliver of Aylmerton is mainly of importance in the developing law in this area because of his introduction of the distinction between primary and secondary victims. For the purposes of these appeals that distinction is of little importance, but a passage from Lord Oliver's speech at the bottom of p. 409 of the report has some relevance and is worth quoting. It reads as follows:
"Beyond this, however, the law in general provides no remedy, however severe the consequences of the distress or grief may be to the health or wellbeing of the third party and however close his relationship to the victim. I doubt whether the reason for this can be found by an appeal to logic, for there is, on the face of it, no readily discernible logical reason why he who carelessly inflicts an injury upon another should not be held responsible for its inevitable consequences, not only to him who may conveniently be termed 'the primary victim' but to others who suffer as a result. It cannot, I think, be accounted for by saying that such consequences cannot reasonably be foreseen. It is readily foreseeable that very real and easily ascertainable injury is likely to result to those dependent upon the primary victim or those upon whom as a result of negligently inflicted injury the primary victim himself becomes dependent."
105. While that passage was intended to refer to the compensation which might be recoverable by a so called "secondary victim", a similar pragmatism may in other circumstances also render unavailable a remedy to recover damages for ill-effects of negligent conduct. For instance, there is no action for distress, worry or anxiety as such. There must at the very least be a recognised psychiatric condition. For reasons which I will elaborate on, I do not accept that in all circumstances, feelings which result in psychiatric disease necessarily by that reason alone give rise to an actionable claim for damages. The judgment of Lord Oliver highlights the usual problem already referred to by Lord Wilberforce in the McLoughlin case that what I might describe as a hidden agenda of "policy" can be buried in concepts of proximity or foreseeability or indeed be not buried at all but appear free standing. In setting the bounds for the so-called "secondary victim" cases Lord Oliver, although choosing the "proximity" route is forced to admit at the middle of p. 411 that the concept of proximity is "an artificial one which depends more on the court's perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction."
106. At p. 418 of the speech Lord Oliver comes down firmly in favour of policy in each individual case determining whether a duty of care arose or not in a secondary victim case. He, again, pointed out that logic cannot determine it because there is no logic in the lines which the courts have drawn. Once again, therefore, the importance of pragmatism and policy raises its head in the law of tort.
107. There is nothing in the other speeches which requires comment and I move now to the fourth of the five cases which I am reviewing. This is a case heavily relied on by counsel for the respondents, Mr. Sweetman. It is Page v. Smith [1996] 1 AC 155. The case involved a so-called "primary victim". It was an ordinary running down action, but the plaintiff suffered no physical injury. Three hours after the accident, however, the plaintiff felt exhausted and that exhaustion continued. Prior to the accident the plaintiff had been suffering from a chronic fatigue syndrome and he claimed that as a result of the accident that condition had become chronic and permanent when it had been spasmodic. The plaintiff recovered damages in the High Court but this judgment was set aside by the Court of Appeal on the grounds that the injury was not reasonably foreseeable. There was then a further appeal to the House of Lords and it was held (Lord Keith of Kinkel and Lord Jauncey of Tullichettle dissenting) that once it was established that the defendant was under a duty of care to avoid causing personal injury to the plaintiff, it did not matter whether the injury in fact sustained was physical, psychiatric or both. Applying that test it was sufficient to ask whether the defendants should have reasonably foreseen that the plaintiff might suffer personal injury so as to bring him within the ambit of the duty of care. It was unnecessary to consider whether the defendant should reasonably have foreseen injury by shock.
108. This statement of law (if correct) could be helpful to the respondents only if they first establish a duty of care. Even if I came to the conclusion that the relevant question in this case was not was there a duty of care to prevent the kind of damage claimed but rather was damage of that kind recoverable for breach of such a duty of care, I would still be of opinion that the respondents in this case would not be able to rely to any great extent on Page v. Smith. There is a world of a difference between direct injury resulting from a motor accident in which the plaintiff was involved on the one hand and a condition of anxiety emerging from information being gained as to the possible effects of negligent exposure over a long period of time to asbestos or the other. The views of the majority of the Law Lords and particularly of Lord Lloyd of Berwick in Page v. Smith are highly controversial and have been sharply criticised by Lord Goff of Chievley in the fifth case to which I will be referring. But even if the majority decision in Page v. Smith is in line with the law in this jurisdiction, I do not think that it is relevant to the wholly different set of circumstances in which these appellants were involved. It is quite clear at any rate that the only substantial issue in Page v. Smith and the issue on which there was disagreement between the Law Lords was whether in the case of a primary victim claiming for psychiatric injury it was necessary to prove that such psychiatric injury was foreseeable or whether it was merely necessary to prove that some injuries were foreseeable. I have already expressed the view that I can find no fault in the findings of the respective trial judges to the effect that psychiatric disease in these cases was reasonable foreseeable. Therefore, nothing turns in these appeals on the issues in dispute in Page v. Smith. There is one passage in the speech of Lord Lloyd however which is worth quoting. It is at p. 189 of the report and reads as follows:-
"Are there any disadvantages in taking the simple approach adopted by Otton J.? It may be said that it would open the door too wide, and encourage bogus claims. As for opening the door, this is a very important consideration in claims by secondary victims. It is for this reason that the courts have as a matter of policy rightly insisted on a number of control mechanisms. Otherwise, a negligent defendant might find himself being made liable to all the world. Thus in the case of secondary victims foreseeability of injury by shock is not enough."
109. Mr. Gleeson has argued that the respondents in these cases are secondary victims, and that is why I cite that passage. Towards the end of his judgment at p. 197 Lord Lloyd says the following:
"In conclusion, the following propositions can be supported.
1. In cases involving nervous shock, it is essential to distinguish between the primary victim and secondary victims.
2. In claims by secondary victims the law insists on certain control mechanisms, in order as a matter of policy to limit the number of potential claimants. Thus the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude. These control mechanisms have no place where the plaintiff is the primary victim.
3. In claims by secondary victims, it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability at all. Hindsight however has no part to play where the plaintiff is the primary victim.
4. Subject to the above qualifications, the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury whether physical or psychiatric. If the answer is yes then the duty of care is established, even though physical injury does not in fact occur. There is no justification for regarding physical and psychiatric injury as different 'kinds of damage'.
5. A defendant who is under a duty of care to the plaintiff whether as primary or secondary victim is not liable for damages for nervous shock unless the shock results in some recognised psychiatric illness. It is no answer that the plaintiff was predisposed to psychiatric illness nor is it relevant that the illness takes a rare form or is of unusual severity. The defendant must take his victim as he finds him."
110. It is understandable that Mr. John Sweetman, S.C. counsel for the plaintiff/respondent should seek to find comfort in these statements of principle. But in my view they have little relevance to the issues involved in these appeals. First of all these actions are not claims for damages for "nervous shock" as that expression has been understood in the English case law as directly flowing from an accident or trauma. The second of those principles acknowledges that in the case of certain types of victims, control mechanisms are necessary so as to limit the number of potential claimants. The House of Lords therefore, has rather arbitrarily held that in the case of secondary victims but not in the case of primary victims the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude. That is also the law here in relation to secondary victims and it may well be the law in relation to primary victims having regard to the decision of this court in Kelly v. Hennessy.
111. Under the fifth principle the shock must result in some recognised psychiatric illness but the severity or unusualness of the psychiatric illness is irrelevant. That would also be the case here if there was a duty of care and there was foreseeability of psychiatric injury. It is the principle relating to damages usually known as "the thin skull" principle.
112. But there is no logical reason, why, assuming that control mechanisms are necessary there should be any similarity between the control mechanisms operative in the case of "aftermath" or "rescuer" cases on the one hand and "fear of disease" cases on the other. In the absence of firm precedent this court must consider whether control mechanisms are necessary in "fear of disease" cases and if so what those mechanisms should be.
113. The fifth of the "nervous shock" cases to which I intend to refer is White v. Chief Constable of South Yorkshire Police [1999] 2 AC 455 but otherwise known as Frost v. Chief Constable of South Yorkshire Police and hereinafter referred to as "the Frost case". The case is partly remarkable for a strident attack in a dissenting opinion by Lord Goff of Chieveley on the speech of Lord Lloyd of Berwick in Page v. Smith. But that relates to an issue which does not really arise in these appeals namely, whether foreseeability of psychiatric injury is always necessary if damages are to be recovered for it irrespective of whether the victim is primary or secondary or whether, as Lord Lloyd considered, such a rule only applies to secondary victims. As I have already indicated there is some ambiguity in this jurisdiction on this point as it is not entirely clear from the judgment of Hamilton CJ in Kelly v. Hennessy which of those two approaches he was taking. But the Frost case is of some relevance, nevertheless, particularly having regard to the principles of policy considerations set out in the speech of Lord Steyn. He points out at p. 492 of the report that "the contours of tort law are profoundly affected by distinctions between different kinds of damage or harm." He speaks of the analogy of the relatively liberal approach to recovery of compensation for physical damage and the more restrictive approach to the recovery for economic loss." Policy considerations come into play and in the view of Lord Steyn they have always come into play in relation to distinctions between physical injury and psychiatric harm. There has always been the frightening spectre of an unlimited number of claimants. Lord Steyn goes on to point out that "in cases of pure psychiatric harm there is potentially a wide class of plaintiffs involved".
114. I think it useful next to refer to a passage in the speech of Lord Hoffmann at p. 501. It reads as follows:
"For a long time during this century it remained unclear whether the basis of liability for causing a recognised psychiatric illness was simply a question of foreseeability of that type of injury in the same way as in the case of physical injury. The decision of the House of Lords in Bourhill v. Young [1943] AC 92, appeared to many to combine what was in theory a simple foreseeability test with a robust wartime view of the ability of the ordinary person to suffer horror and bereavement without ill effect. Cases soon afterwards, like King v. Phillips [1953] 1 Q.B. 429, followed this approach, treating foreseeability as a question of fact but keeping potential liability within narrow bounds by taking a highly restrictive view of the circumstances in which it was foreseeable that psychiatric injury might be caused. But such decisions were criticised as out of touch with reality. Everyone knew that some people did suffer psychiatric illness as a result of witnessing distressing accidents in which other people particularly close relatives were involved. Some judges, sympathetic to the plaintiff in the particular case, took the opportunity to find as a fact that psychiatric injury had indeed been foreseeable. This made it difficult to explain why plaintiffs in other cases had failed. It seemed that if the foreseeability test was to be taken literally and applied in the same way as the test for liability for physical injury, it would be hard to know where the limits of liability could be drawn. In all but exceptional cases, the only question would be whether on the medical evidence, the psychiatric condition had been caused by the defendant's negligent conduct.
There was a time when it seemed that English law might arrive at this position. It came within a hair's breadth of doing so in McLoughlin v. O'Brian …, one of those cases in which one feels that a slight change in the composition of the appellate committee would have set the law on a different course. But the moment passed and when the question next came before Your Lordships House in Alcock v. Chief Constable of South Yorkshire Police …, judicial attitudes had changed. The view which had for some time been in the ascendancy, that the law of torts should, in principle aspire to provide a comprehensive system of corrective justice, giving legal sanction to a moral obligation on the part of anyone who has caused injury to another without justification to offer restitution or compensation, had been abandoned in favour of a cautious pragmatism. The House decided that liability for psychiatric injury should be restricted by what Lord Lloyd of Berwick in Page v. Smith afterwards called 'control mechanisms' that is to say more or less arbitrary conditions which a plaintiff had to satisfy and which were intended to keep liability within what was regarded as acceptable bounds."
115. I shall signpost here the view expressed by me later on in this judgment that mechanisms are necessary to control the potential number of claims that may be made arising out of negligent exposure to asbestos. I have already indicated that as to the kind of control which should be applied, these five "nervous shock" cases arising out of "once off" accidents do not afford much assistance.
116. The question of controls is difficult and a reading of the Frost case makes it clear that there is considerable academic criticism of the relevant House of Lords decisions with opinions coming from both extremes, that is to say, the view that psychiatric injury should be treated no differently in any case than physical injury on the one hand and the view that damages should never be recoverable for psychiatric injury on the other. In relation to these opposing proposals Lord Hoffman had this to say at the bottom of p. 503:
"The appeal of these two opposing proposals rather depends upon where one starts from. If one starts from the proposition that in principle the law of torts is there to give legal force to an Aristotelian system of corrective justice, then there is obviously no valid distinction to be drawn between physical and psychiatric injury. On this view, the control mechanisms merely reflect a vulgar scepticism about the reality of psychiatric injury or a belief that it is less worthy of compensation than physical injury: therein the patient must minister to himself. On the other hand, if one starts from the imperfect reality of the way the law of torts actually works, in which the vast majority of cases of injury and disability, both physical and psychiatric, go uncompensated because the persons (if any) who cause the damage were not negligent (a question which often involves very fine distinctions) or because the plaintiff lacks the evidence or the resources to prove to a court that they were negligent, or because the potential defendants happen to have no money, then, questions of distributive justice tend to intrude themselves. Why should X receive generous compensation for his injury when Y receives nothing? Is the administration of so arbitrary and imperfect a system of compensation worth the very considerable cost? On this view, a uniform refusal to provide compensation for psychiatric injury adds little to the existing stock of anomaly in the law of torts and at least provides a rule which is easy to understand and cheap to administer."
117. Like the English courts, I would not favour either of these extreme solutions but I would agree that pragmatic control mechanisms must be applied in actions for pure psychiatric damage and in many instances even in the interests of distributive justice.
118. Lord Hoffman at the end of p. 509 considers the suggestion of taking the incremental step of extending liability for psychiatric injury "to rescuers". He points out that this would mean that the category of secondary victims would be confined to "spectators and bystanders" who take no part in dealing with the incident or its aftermath. He is against taking this step for two reasons. The first reason relates to difficulties of definition and is not really relevant to these appeals but the second reason is of some relevance as will be apparent when I come to giving my final conclusions. It is contained in the following passage:
"But the more important reason for not extending the law is that in my opinion the result will be quite unacceptable. I have used this word on a number of occasions and the time has come to explain what I mean. I do not mean that the burden of claims would be too great for the insurance market or the public funds, the two main sources for the payment of damages in tort. The Law Commission may have had this in mind when they said that removal of all the control mechanisms would lead to an ' unacceptable' increase in claims, since they described it as a 'floodgates' argument. These are questions in which it is difficult to offer any concrete evidence and I am simply not in the position to form a view one way or the other. I am therefore willing to accept that, viewed against the total sums paid as damages for personal injury, the increase resulting from an extension of liability to helpers would be modest. But I think that such an extension would be unacceptable to the ordinary person because (though he might not put it this way) it would offend against his notions of distributive justice. He would think it unfair between one class of claimants and another, at best not treating like cases alike and, at worst, favouring the lest deserving against the more deserving. He would think it wrong that policemen, even as part of a general class of persons who rendered assistance, should have the right to compensation for psychiatric injury out of public funds while the bereaved relatives are sent away with nothing."
119. I think that there are issues of distributive justice involved here in considering whether this court ought to allow these claims or not and I will return to this question in due course.
120. I turn now to the few "fear of disease" cases to which the court has been referred. These have included some American cases and in particular the case of Majca v. Beekil 682 ME 2d 253 Ill App 1 Dist (1997) (Illinois Appellate Court) which I have found helpful in clarifying my mind. In that case a woman who worked in a medical office and who had been crushed by a scalpel which had been placed in garbage by physicians brought an action for damages for her fear that she had contracted HIV. She and her husband were suing the physician in charge of the office who had since died of AIDS though that information only reached the plaintiffs after the woman's cut. By that time she had undergone two tests which showed her to be HIV negative. The Court of first instance gave summary judgment in favour of the defendants and the plaintiffs appealed. The appellate court held that any reasonable fear by the woman and her husband that they had acquired HIV was not compensatable as they did not learn that the physician had AIDS until eight months after the woman's cut, at which time she had undergone two tests which showed her to be HIV negative. In the judgment of the appellate court it was stated that Illinois courts permit a plaintiff who had suffered a physical impact and injury due to a defendant's negligence to recover for the mental suffering that the injury directly causes, but, to use the English terminology, it would seem clear from the judgment of this court that the Illinois courts apply "control mechanisms". Not only do they require "medically verifiable manifestations of severe emotional distress" but the foreseeable fear and distress must reach a degree of severity that justifies tort compensation. To quote the judgment "Thus, not all negligently caused fears are compensable". Where there is a fear of future illness the court took the view that recovery of compensation should be restricted to severe emotional distress arising from serious fear occasioned by a substantial medical verifiable possibility of contracting the disease. A foreseeable fear of deadly disease may not be compensatable if the feared contingency is too unlikely. There is then an interesting passage of some relevance to these appeals.
"Where hysterical fear of a disease is sufficiently widespread, and popular knowledge concerning its aetiology is limited, a plaintiff may foreseeably experience severe emotional distress without medically verifiable evidence of a substantially increased risk of contracting the disease. Most courts have held that recovery for fear of disease should not extend to such foreseeable fears, because as commentators have noted, such broad recovery rewards ignorance about the disease and its causes."
121. In Potter v. Firestone Tire and Rubber Company the Supreme Court of California in a judgment of Baxter J. held that:
"In the absence of present physical injury or illness recovery of damages for fear of cancer in a negligence action should be allowed only if the plaintiff pleads and proves that the fear stems from a knowledge which is corroborated by reasonable medical and scientific opinion that it is more likely than not that cancer will develop in the future due to toxic exposure."
In a later part of the judgment under the heading "Damages" it is stated as follows:-
"Toxic exposure plaintiff is required to establish reasonableness of his or her fear of cancer in order to recover for damages for that fear, and reasonableness is not established by mere fact of exposure or significant increase in risk of cancer; carcinogenic or other toxic ingestion or exposure, without more, does not provide basis for fearing future physical injury or illness which law is prepared to recognise as reasonable, and the fact that one is aware that he or she has ingested or otherwise been exposed to carcinogen or other toxin without any regard to the nature, magnitude and proportion of the exposure or its likely consequences, provides no meaningful basis upon which to value the reasonableness of one's fear."
Again, at p. 800 of the report the following passage appears in the judgment:
"Our analysis of existing case law and policy consideration relevant to the availability of damages for emotional distress leaves us to conclude that, generally, in the absence of a present physical injury or illness, recovery of damages for fear of cancer in a negligence action should be allowed only if the plaintiff pleads and proves that the fear stems from a knowledge, corroborated by reliable, medical and scientific opinion, that it is more likely than not that the feared cancer will develop in the future due to the toxic exposure."
122. The judgment sets out a number of public policy reasons for denying redress in such cases. Some of these are more relevant than others to the Irish situation. But I would summarise them as follows:
"1. Likely scarcity and high expense of insurance liability.
2. Undue conservatism in the testing of new drugs which may be of great benefit to the public.
3. Allowing recovery to all victims who have a fear of cancer may work to the detriment of those who sustain actual physical injury and those who ultimately develop cancer as a result of toxic exposure. Defendants and insurers may be unable to insure adequate compensation for the victims who actually develop cancer having regard to the heavy liability to those who merely fear it.
4. The difficulty of definition of a predictable threshold for recovery.
5. The necessity to limit the number of potential plaintiffs if emotional injury absent physical harm is to continue to be a recoverable item of damages in a negligence action. Having regard to the intangible nature of the loss the inadequacy of monetary damages to make whole the loss, the difficulty of measuring the damage and the societal cost of attempting to compensate the plaintiff."
123. Other public policy considerations which have been put forward in other cases and, indeed, were put forward by Mr. Gleeson in this case are the dangers of fraudulent claims and problems of proof.
124. The next case is a fear of asbestos disease case. It is Temple-Inland Forest Products Corporation v. Reeves Carter [1993] S.W. 2nd 88 (Supreme Court of Texas) (1999). In that case electrical workers exposed to asbestos in business premises sued the business for negligence. They were not seeking damages for having contracted any disease arising from asbestos exposure but rather for "mental anguish damages for their fear of possibility of developing asbestos-related disease in future". The court of first instance had dismissed the action. That decision had been affirmed in part and reversed in part by a regional Court of Appeal in Texas and it then ultimately came before the Supreme Court of Texas by way of writ of error. The unanimous opinion of the latter court was delivered by Justice Hecht and I will quote the following passage in his judgment:
"For the same reasons, like the Supreme Court and courts in most other jurisdictions, we cannot permit recovery of mental anguish damages in cases like this one. In almost all instances involving personal injury, the law allows for the recovery of accompanying mental anguish damages, even if the mental anguish is not itself physically manifested. But if bodily injury is at most latent and any eventual consequences uncertain as when a person's exposure to asbestos has not produced disease then the case for recovery of mental anguish damages is much weaker. A person exposed to asbestos can certainly develop serious health problems, but he or she also may not. The difficulty in predicting whether exposure will cause any disease and if so, what disease, and the long latency period characteristic of asbestos-related diseases, make it very difficult for judges and juries to evaluate which exposure claims are serious and which are not. This difficulty in turn makes liability unpredictable, with some claims resulting in significant recovery while virtually indistinguishable claims are denied altogether. Some claimants would inevitably be overcompensated when, in the course of time, it happens that they never develop the disease they feared and others would be under compensated when it turns out that they developed a disease more serious even than they feared. Also claims for exposure could proliferate because in our society, as the Supreme Court observed 'contacts, even extensive contacts with serious carcinogens are common'. Indeed most Americans are daily subjected to toxic substances in the air they breathe and the food they eat. Suits for mental anguish damages caused by exposure but which had not resulted in disease could compete with suits for manifest diseases for the legal system's limited resources. If recovery were allowed in the absence of present disease, individuals might feel obliged to bring suit for such recovery prophylactically, against the possibility of future consequences from what is now an inchoate risk. This would exacerbate not only the multiplicity of suits but the unpredictability of results."
125. We have been referred to three other fear of disease cases. The first is CJD Group B v. MRC [2000] Lloyds Rep Med 161. In that case the claimants were members of a group who as children suffered from dwarfism. They took part in clinical trials run by the defendants to improve their prospects of adulthood. Those trials included injection of Hartree HGH. At a later stage the defendants became aware of the risk that the HGH injection might carry a potentially lethal dose of the CJD agent. Nevertheless, they continued the trials. The claimants all discovered the dangers subsequently though clinicians, councillors or the media and it was assumed then for the purposes of a trial of a preliminary issue that all the claimants had a psychiatric injury derived from the awareness that they might develop CJD. In the course of his judgment, the trial judge Morland J. at p. 165 said the following:
"I am persuaded that the Group B plaintiffs should not be treated as primary victims. I accept the submissions of Mr. Fenwick that if they were, the ramifications would be incalculable. If they were primary victims so would be those exposed to asbestos or radiation, for primary liability may depend not upon common law negligence but on statutory duty or even strict liability even if they became aware of the risk of physical injury years later and consequently developed psychiatric injury. The potentiality of a huge number of claims in similar situations would arise making insurance difficult or impossible. It could involve all manner of products and a huge range of potential tortfeasors. It could inhibit the producers, prescribers and suppliers of a product from warning the public of the danger of a product. For example, a potentially lethal substance has been negligently introduced into a production batch of canned fruit. It would be disastrous if a supplier or producer were inhibited from warning the public of danger for fear that some of those who had already eaten the canned food might bring a claim as a primary victim for psychiatric injury triggered by the warning. Against such a claim the producer could not raise defences either that the psychiatric injury was unforeseeable to a person of normal fortitude or that the law insists upon certain control mechanisms to limit the number of potential claimants."
Again, later on in the same page the learned judge makes the comment:
"Unlike some of the examples given by Mr. Fenwick in his 'floodgates' argument such as exposure to asbestos, radiation and contaminated blood transfusions the cohort of potential victims of psychiatric injury is small."
126. I agree with the view expressed in the written submissions lodged in this appeal on behalf of the appellants that for very understandable reasons the judge was clearly highly sympathetic to the claimants in that case. The general tenor of the judgment would seem to indicate that he was treating them as a special case. Furthermore, he sought to rely on the speech of Lord Scarman in the McLoughlin case who expressed the view that if a psychiatric injury was reasonably foreseeable it should be untrammelled by spatial, physical or temporal limits. As counsel for the appellants point out in the written submissions, that view is not in accordance with established English law and clearly conflicts also with Kelly v. Hennessy at least in relation to non-primary victims. It is perfectly clear from his judgment, that Morland J. did not think that his decision could have any relevance to a fear of asbestos case.
127. The next such case is Bryan v. Phillilps New Zealand Limited ]1995] 1NZLR 633. This was a case where a New Zealand High Court judge refused to strike out an amended statement of claim in a fear of asbestos related disease case where the amended statement of claim included a claim for damages for "cancerphobia". The judge pointed out that it was "a developing field of law" and that although there were American cases which made it clear that fear of cancer had to be reasonable and causally related to a defendant's negligence the correct legal parameters had not been fully established and that it would be a matter for the trial judge. The case was not unstateable so that it could be struck out. That is all I need say about that case. It is perfectly clear that it is of no assistance. Indeed, no matter what the outcome of this appeal is, if a motion had been brought to strike out these actions in the High Court it would have had to be refused.
128. Finally, I would refer to an unreported judgment of Girvan J. delivered the 24th of May, 2000 in the High Court of Northern Ireland in a case called Bittles v. Harland and Wolffe Plc [2000] NIJB 209. In that case a plaintiff brought an action claiming damages for personal injuries sustained as a result of being exposed to asbestos dust during an earlier working life with the defendants. His case was that as a result of his exposure to asbestos in those years he had subsequently developed asymptomatic pleural plaques and that he had also suffered severe clinical depression as a result of the discovery that he had an asbestos related condition. The learned trial judge found as a fact that the plaintiff did suffer a depressive condition "which was significantly aggravated by the diagnosis of an asbestos related illness". The relevant international cases do not seem to have been cited in court and the judge's decision largely turned on the view he took that the pleural plaques constituted a physical injury (a view which would be controversial at least in this jurisdiction especially having regard to the definition of injury in the Civil Liability Act, 1961), Girvan J. effectively was treating the psychiatric injury as parasitic to the physical injury. At any rate, the plaintiff in this appeal had no pleural plaques. For these reasons the Bittles case would seem to be of no assistance to the respondent in this appeal.
129. It is against that background of the case law which I have reviewed that this court must decide as a matter of policy and of reasonableness whether claims for damages for psychiatric injury only and resulting from fear of asbestos related diseases of a degree which is objectively irrational are recoverable. Traditionally, courts do not always use the actual word "policy". They may attempt to draw artificial limits to what can be regarded as being reasonably foreseeable or they may in considering proximity or other questions in relation to the existence of a duty of care invoke the concept of reasonableness so that a duty of care will not in fact be imposed if the court considers it unreasonable to do so. The third control mechanism which the court may impose is in relation to particular heads of damage or finally, they may expressly deny a claim on grounds of public policy.
130. I am quite satisfied that for the kind of reasons adumbrated in the American cases and also by reason of the objective irrationality of the fears of these respondents that they will contract asbestos related diseases, the appeal should be allowed. As I have already pointed out, the learned trial judge in this case considered that the psychiatric condition was reasonably foreseeable even when applying the "person of reasonable fortitude" standard. In relation to the issue of reasonable foreseeability I would not attach significance to the irrationality aspect. There has been such alarming treatment by the media about asbestos that it would be reasonably foreseeable that a person of normal fortitude might seriously suffer from irrational fears of contracting the diseases. But that is quite different from saying that the irrationality is irrelevant to the questions at issue on this appeal. In my view it would be unreasonable to impose a duty of care on employers whether they be State or non-State (there being no known justification for making any distinction) insured or uninsured to take precautions not merely that their employees will not contract disease but that they will not contract so serious a fear of contracting a disease however irrational that they develop a psychiatric overlay. The court should not permit compensation for irrationality in that way. It is quite different from the case of a plaintiff who suffers from traumatic neurasthenia linked with physical illness directly resulting from an accident. Furthermore, there would be an element of unfairness of the kind adverted to by Lord Hoffman as between employees exposed to such asbestos who may in fact suffer from great anxiety for the remainder of their lives but not such as could be characterised as psychiatric injury on the one hand and those who suffer from such anxiety which can be characterised as psychiatric injury on the other. Is it just that a worrier who has to take medication for his worry receives sums in the order of €50,000 or more whereas worriers who do not have to take such medication get nothing? I think not.
131. As I have reviewed the case law at some length with the result that my own views on the legal principles involved which I have expressed as they arose at different points in the judgment are in danger of becoming somewhat buried, I think it useful to gather together the more important principles which I perceive as applying. They are as follows:
1. Reasonable foreseeability is not the only determining factor in establishing a duty of care. "Proximity" which is given an elastic definition in the decided cases, the reasonableness of the imposition of a duty of care and questions of public policy can be additional determining factors.
2. The learned High Court judge after hearing submissions on the English case law in relation to secondary victims and bearing in mind the submission by counsel for the defendant that this was a claim by a "secondary victim" held that if he was bound to apply the standard of "a person of normal fortitude", he considered it was reasonably foreseeable that such a person might develop an irrational worry that he would contract such disease notwithstanding the advice of his doctors and the consequent psychiatric condition. I am of opinion that it was open to the trial judge to take that view.
3. Mr. Gleeson argued on the appeal before this court that the respondent was a "secondary victim" in that, the respondent did not develop the worry and consequent psychiatric illness directly from the exposure to asbestos but rather from subsequent media information etc. There was some limited judicial support in the English case law for that extended meaning of "secondary victim". Having regard to the view I have taken as to O'Neill J's finding I do not find it necessary to express any final opinion on this matter not least because the primary/secondary distinction has been criticised (see for instance the judgment of Judge McMahon in Curran v. Cadbury (Ireland) Ltd. [2000] 1ILRM 343).
4. Having regard to factors to which I have referred in this judgment and indeed the factors also referred to in the judgment of the Chief Justice I take the view that it would be unreasonable to impose a duty of care on employers to guard against mere fear of a disease even if such fear might lead to a psychiatric condition.
5. I have deliberately refrained from expressing any view as to whether the implantation of fibres into the lung (which did occur in this case) or the development of pleural plaques (which did not occur) and in neither case involving any immediate symptoms could be described as a physical injury especially having regard to the definition of injury in the Civil Liability Acts. At the hearing of this appeal it was accepted that the damages were awarded for psychiatric injury only and I am approaching the case on that basis.
132. I would allow the appeal and set aside the judgment obtained in the High Court.