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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Rafter v. A.G. & Ors [2004] IEHC 28 (26 February 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/28.html Cite as: [2004] IEHC 28

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Rafter v. A.G. & Ors [2004] IEHC 28 (26 February 2004)

 
THE HIGH COURT

RECORD NO. 6609P 2002

BETWEEN KIERAN RAFTER

PLAINTIFF

AND THE ATTORNEY GENERAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE COMMISSIONER OF AN GARDA SIOCHANA

DEFENDANTS

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

By Notice of Motion dated the 18^th day of July 2003 the Defendants seeks the following reliefs –

(1) An Order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts 1986 that the Plaintiff's claim be struck out on the grounds that it discloses no reasonable cause of action.

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

The Plaintiff's claim was commenced by Plenary Summons and was issued on the 8^th day of May 2002 and is one of a series of claims which arise in the following circumstances. The Plaintiff was employed by the Defendants at Government Buildings. In the course of his employment he was exposed to asbestos and he claims that in consequence thereof he sustained personal injury. In the particulars of personal injury in the Statement of Claim it is pleaded that on becoming aware of his exposure he suffered from worry and anxiety. While not showing any signs of asbestos exposure he is at risk as a result of the same.

The Rules of the Superior Courts Order 19 Rule 28 provides as follows –

"The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious the Court may order the action to be stayed or dismissed, or judgment to be ordered accordingly, as may be just."

On an application under this Rule the Court can only make an Order when the pleading discloses no reasonable cause of action on its face: Barry v Buckley 1981 I.R. 306.

The Court also has an inherent jurisdiction to stay proceedings and, on application made to exercise it, the Court is not limited to the pleadings of the parties but is free to hear evidence on Affidavit relating to the issues in the case.

As to whether when an Order is appropriate it should be an Order to stay or to dismiss the proceedings the Court should have regard to whether on a successful application for amendment the Plaintiff's claim might be sustainable: Keaveny v Geraghty 1965 I.R. 551 Walsh J. at 562. Again the Court must be slow to exercise its jurisdiction to dismiss the action: Sun Fat Chan v Osseous Limited 1992 1 I.R. 425.

The law in relation to fear of disease cases was dealt with by the Supreme Court in Fletcher v Commissioners of Public Works in Ireland 2003 2 ILRM 94. In order to succeed a Plaintiff must suffer from a recognisable psychiatric illness. The Plaintiff in his Statement of Claim here does not plead any such illness but merely pleads that he suffered from worry and anxiety. Again in such cases in order to succeed the Plaintiff must establish a physical injury and no physical injury is expressly pleaded. On the pleadings accordingly the Plaintiff's claim must fail and the Defendants are entitled to have the claim dismissed or stayed under the Rules of the Superior Courts.

However where the inherent jurisdiction of the Courts is relied upon I am entitled to have regard to evidence and in this case I have an Affidavit from the Plaintiff's Solicitor from which a number of matters appear. Firstly the Affidavit exhibits a Report of Dr. John A. Griffin, Consultant Psychiatrist dated the 11^th July 2002 and this is relied upon as showing that the Plaintiff in fact suffers from a recognised psychiatric condition. Having read the Report I am not satisfied that the Report is to this effect. I reject this argument.

The Affidavit however raises an argument on the issue of liability. The Deponent relies on the evidence given by Professor Luke Clancy in Fletcher v Commissioners of Public Works in Ireland as recorded in the Judgment in that case that persons exposed to inhalation of asbestos particles may suffer microscopic scarring of the inner surface of the lungs and that in Mr. Fletcher's case it was likely that he had inhaled asbestos fibres, that some would have remained in his body and caused microscopic scarring. However there is nothing on Affidavit to suggest that in the instant case having regard to the degree of exposure the same is true. Accordingly having regard to the following –

(1) There is no evidence that the Plaintiff suffers from a recognised psychiatric disorder and

(2) There is no evidence that the Plaintiff is likely to have suffered microscopic scarring it is appropriate that under the Court's inherent jurisdiction the claim should be dismissed or stayed.

In the circumstances of this case I think it appropriate that the action should be stayed rather than dismissed. It may be that on an application to amend the pleadings the Plaintiff will be able to produce evidence that he suffers from a recognised psychiatric condition and that in the circumstances of his exposure to asbestos it is likely that he had inhaled asbestos fibres and that some of them would have remained in his body and caused microscopic scarring. I think it meets the justice of the case that the action should be stayed and not dismissed as prior to the decision in Fletcher v Commissioners of Public Works in Ireland the state of the law was so unclear that the Plaintiff's advisors in obtaining reports from medical experts may not have focused on the two essential requirements to render his case statable. I bear in mind that the Supreme Court refrained from expressing any view as to whether the implantation of fibres into the lung could be described as a physical injury and that in that case damages were awarded for psychiatric injury only.

Accordingly I order that the Plaintiff's action be stayed so however that the Plaintiff shall be entitled to seek to amend his Statement of Claim and may bring a Motion for that purpose. Such Motion should be grounded on an Affidavit by medical experts that -

(a) The Plaintiff suffers from a recognised psychiatric illness and

(b) In the circumstances of the Plaintiff's exposure to asbestos it is likely that he had inhaled asbestos fibres and that some of them would have remained in his body and caused microscopic scarring.