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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Packenham v. Irish Ferries Ltd. (Formerly B & I Ltd.) [2004] IEHC 27 (26 February 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/27.html Cite as: [2004] IEHC 27

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Packenham v. Irish Ferries Ltd. (Formerly B & I Ltd.) [2004] IEHC 27 (26 February 2004)

 
THE HIGH COURT

1996 NO. 6417P

BETWEEN CHRISTOPHER PACKENHAM

PLAINTIFF

AND IRISH FERRIES LIMITED (FORMERLY B & I LIMITED)

DEFENDANT

Judgment of Finnegan P. delivered on the 26th day of February 2004

By Notice of Motion dated the 7^th day of July 2003 the Defendant sought the following reliefs –

(1) An Order dismissing the Plaintiff's claim herein pursuant to Order 19 Rule 28 on the grounds that the pleadings herein disclose no reasonable cause of action on the grounds that they are frivolous or vexatious.

(2) Further or in the alternative an Order dismissing the Plaintiff's claim pursuant to the inherent jurisdiction of the Court.

It has been agreed that my determination on this Motion should regulate also the following actions:-

(1) The High Court 1996 592P Bernadette Mulligan, Plaintiff and Irish Ferries Limited (formerly B & I Limited), Defendant.

(2) The High Court 1996 No. 4414P Lorraine Morris, Plaintiff and Irish Ferries Limited (formerly B & I Limited), Defendant.

(3) The High Court 1996 No. 8894P Anne Rohan, Plaintiff and Irish Ferries Limited (formerly B & I Limited), Defendant.

(4) The High Court 1996 No. 4413P Derek Brady, Plaintiff and Irish Ferries Limited (formerly B & I Limited), Defendant.

Further this Motion was heard at the same time as a Motion in an action The High Court 2002 6609P, Kieran Rafter v Ireland and The Attorney General, The Minister for Justice, Equality and Law Reform and The Commissioner of An Garda Siochana in which I have just given judgment. The remarks which I made in that Judgment concerning the Court's jurisdiction and how it should be exercised apply equally here.

In his Statement of Claim the Plaintiff pleads that he sustained personal injury as a result of being exposed to asbestos. In the particulars of personal injuries it is pleaded that the Plaintiff became extremely annoyed, upset and distressed on becoming aware of his exposure. Thus no recognised psychiatric illness is pleaded nor is there a plea of any physical injury. In his reply to a Defendant's Notice for Particulars and a Notice for Further and Better Particulars the Plaintiff failed to advance the matter further.

The Plaintiff's Solicitor swore on Affidavit on the Motion. In paragraph 3. thereof he deposes as follows –

"I say and am advised by Professor Luke Clancy, Respiratory Physician that it is likely that if the Plaintiff has been exposed to asbestos dust over a prolonged period of time he will have sustained microscopic scarring or lesions to his lungs." (Underlining added).

This general proposition is in accord with the evidence given by Professor Clancy in the case of Stephen Fletcher v Commissioners of Public Works in Ireland. However it is not case specific and falls short of an averment that having regard to the actual extent of the exposure of the Plaintiff to asbestos it is likely that he has sustained lesions to his lungs.

The Deponent continues in paragraph 4. of his Affidavit as follows –

"I say that I have consulted with Counsel and with the Plaintiff's medical personnel with a view to advising the Plaintiff whether or not he has a cause of action and further state that such consultations are ongoing and have not yet been completed. I say that this is particularly the case in respect of Professor Luke Clancy, the Plaintiff's Consultant Respiratory Physician who has requested more time from my firm in order to give his advices."

It is reasonable it seems to me to read this averment as an acknowledgment that the Plaintiff is not in a position to adduce evidence that he is likely to have developed lesions.

In a further Affidavit filed on behalf of the Plaintiff the Plaintiff's Solicitor avers that he has been informed by Professor Clancy that medical research has led to the discovery in persons exposed to asbestos fibres of small airways disease. However it is not averred that the Plaintiff suffers from small airways disease although it is proposed that testing should be carried out in relation to the same. I do not consider this to be a ground upon which the Plaintiff's application should be refused: should it transpire that the Plaintiff in fact suffers from this condition he can of course institute proceedings in relation thereto having regard to the provisions of the Statute of Limitations (Amendment) Act 2000.

Neither of the Affidavits filed in the matter disclose a recognised psychiatric illness: all that is disclosed on the Statement of Claim and the amplifying particulars is that the Plaintiff became extremely annoyed, upset and distressed on becoming aware of his exposure to asbestos. No evidence has been adduced that he in fact suffers from such a condition.

The Plaintiff's claim here is one of approximately 400 claims pending or depending against the Defendant. It would be oppressive of the Defendant to allow these claims to go to hearing where on the pleadings no recognised psychiatric illness is pleaded. The law in general provides no remedy for annoyance, upset or distress.

In these circumstances I am satisfied that it is appropriate to make an Order staying this action and the four other actions in which similar motions were listed for hearing with it and which I have mentioned above. The order will be in like terms to that which I have made in the High Court 6609P/2002 Kieran Rafter v Ireland and The Attorney General, The Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Siochana.