THE SUPREME COURT

Keane C.J.
Denham J.
Murray J.
Hardiman J.
Geoghegan J.
5/02
BETWEEN
THE COMMISSONERS FOR PUBLIC WORKS IN IRELAND
DEFENDANTS /APPELLANTS
AND
DERMOT SWAINE						PLAINTIFF/RESPONDENT

JUDGMENT of the Court delivered the 6th day of May 2003,                         by Keane C.J.

	The plaintiff in this case was employed by the defendants as a plumber.  From about the years 1981 – 1982, he was required to work in the Leinster House complex and, to a lesser extent, in the Department of Industry and Commerce, as it was then.  During the course of his work, he was exposed over a lengthy period of time to very large quantities of asbestos dust.  This had no immediate consequence for him in terms of his physical health: it did, however, expose him to the risk, described by the physician whom he attended, Professor Luke Clancy, as “very remote”, of contracting a disease called mesothelioma.  This disease, although relatively uncommon, is lethal when contracted.  As a result of becoming aware of this risk, the plaintiff was suffering at the time of the trial in the High Court from what was described as “a chronic reactive anxiety neurosis”.  

	The learned trial judge (O’Neill J) found that the condition in question had been caused by the negligence of the defendants in exposing the plaintiff to the risk of contracting mesothelioma.  He awarded the plaintiff the sum of £45,000 by way of general damages, divided as to £15,000 in respect of pain and suffering to date and £30,000 in respect of pain and suffering in the future.  In addition, he awarded the plaintiff the sum of £15,000 by way of aggravated damages.  The total of damages awarded was, accordingly, £60,000.

	The defendants served a notice of appeal on the grounds, inter alia, that the plaintiff was not entitled to recover any damages in respect of any physical injury, since he had suffered none, or in respect of the reactive anxiety neurosis which he had been found to be suffering from at the trial and that he was not entitled to recover any sum by way of aggravated damages. 

	The appeal in this case was heard at the same time as four other appeals in which the plaintiffs were Stephen Fletcher, Raymond Brophy, Patrick Sammon and David Shorthall and the present defendants were also the defendants.  The plaintiffs in those cases had also been at all material times in the employment of the defendants.  All five cases arose out of what was admitted to be the failure of the defendants as employers to take precautions for the safety, health and welfare of the plaintiffs as their employees.  In each of the other cases, as was also conceded on behalf of the defendants, the plaintiffs were exposed to significant quantities of asbestos dust in the course of their employment and, as a further consequence to the risk of contracting mesothelioma.  There was also evidence in those cases from psychiatrists that the plaintiffs, as a result of their having been informed of that risk, suffered from a recognisable psychiatric disorder.  In each case, the trial judge found that the defendants were liable to pay damages in respect of the psychiatric injury in question.  

	On the 13th February last, this court gave judgment in one of these cases, Stephen Fletcher –v- The Commissioners for Public Works in Ireland.  The court was unanimously of the view that the appeal should be allowed and an order dismissing the plaintiff’s claim substituted for an order of the High Court.  The court was satisfied that the law in this jurisdiction should not be extended by the courts so as to allow the recovery by plaintiffs of damages for psychiatric injury resulting from an irrational fear of contracting a disease because of their negligent exposure to health risks by employers, where the risk is characterised by their medical advisors as very remote.  Since, however, the course which the proceedings took in each case in the High Court was not identical, so far as the admissions made on behalf of the defendants and the issues which fell to be determined were concerned, it seemed more convenient that the court should give judgment on the issues which were the subject of argument in the court in that case only, leaving for further consideration the effect of its judgment on the remaining four appeals.

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

	Not only were the defendants seriously remiss in this case in taking elementary precautions for the health, welfare and safety of their employees, including the plaintiff: they have not even the excuse, if excuse it would have been, of not being aware at the time of the dangers associated with asbestos dust for persons such as the plaintiff who were compelled to work in areas where it was impossible to avoid inhaling the potentially damaging fibres.  As the evidence before the trial judge indicated, they were fully aware of those risks and when they employed contractors to deal with the lagging which was giving rise to the problem, their workers, unlike the plaintiff and his fellow employees, were given protective clothing and headgear. Nor was the plaintiff given any warning whatever of the dangers he was being exposed to from the asbestos dust.  I do not think it is possible to dissent from the trial judge’s finding that it was “negligence of the grossest kind”.

	However, whether that entitled the trial judge to award an additional sum of £15,000 by way of aggravated damages is another matter entirely.  It was agreed in this court that the generally accepted statement of the law as to the circumstances in which a court can award aggravated damages is to be found in the judgment of Finlay CJ in Conway –v- Irish National Teachers Organisation [1991] 2IR 305.  He said:-
“Aggravated damages [are] compensatory damages increased by reason of 
(a)	the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance, or outrage or
(b)	the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or  the making of threats to repeat the wrong, or 
(c)	conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.
“Such a list of the circumstances which may aggravate compensatory damages until they can be properly be classified as aggravated damages is not intended to be in any way to be finite or complete.  Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant”.
 
	The learned Chief Justice goes on in that part of his judgment to explain the circumstances in which punitive or exemplary damages can be awarded and his reasons for concluding that there is no distinction between punitive and exemplary damages.  Since the trial judge in the present case expressly rejected an invitation to award punitive or exemplary damages, we are solely concerned with whether he was correct in holding the plaintiff entitled to aggravated damages.

	Although the learned Chief Justice in the passage which I have quoted emphasises that the list of the circumstances in which aggravated damages may be awarded is not intended to be exhaustive, those circumstances which he has identified do not typically arise in cases of negligence and, if they do, are not a ground for increasing the amount of compensatory damages.   

	Thus, to take the first category – the manner in which the wrong was committed – the consequences for the victim of the negligence will often have little or no relation to the degree of moral culpability associated with the negligent conduct.  A person driving in a reckless manner or under the influence of drink or drugs may inflict only minimal injuries on a person with whom he is in collision.  At the other end of the scale, a sober and conscientious driver may suffer from a momentary loss of concentration which may result in the most catastrophic injuries to the plaintiff.  In the first case, the driver’s conduct could well be stigmatised as arrogant, outrageous or  – though it would be an unusual adjective to choose – oppressive.  No such criticism could be directed at the conduct of the person in the second category.  It has never been suggested that the moral culpability arising  in the first category should be reflected by an award of aggravated damages.  

The second category of circumstances – the conduct of the wrongdoer after the commission of the wrong – also seems unlikely to arise in claims for negligence.  The reason people involved in a road traffic accident do not apologise, even if they consider themselves to  have been in the wrong, is in many cases because, where the impact has been serious, they are too shocked by the occurrence to think of expressing regret.  If they subsequently fail to express their regret, it is because the conduct of the proceedings has passed out of their hands into those of an insurance company or, in the plaintiff’s case, his solicitor.  Nor can one readily envisage cases of negligence in which the person would threaten to repeat the negligent conduct.

The same considerations apply to the third category, i.e., the conduct of the wrongdoer in the defence of the claim of the wronged plaintiff: most parties leave the subsequent conduct of the action entirely to their solicitors or their insurers.

The cases in which one would expect to find awards of aggravated damages are those in which the damages are traditionally described as being “at large” and in which it can be said that the intention of the defendant to commit the wrong is frequently a precondition to liability.  Obvious examples are the torts of defamation and malicious prosecution.  Indeed, the learned authors of the article on damages in Halsbury’s Laws of England, Fourth Edition. Vol.12 (1) para 1114 state unequivocally:
“Such damages [aggravated damages] cannot be awarded for the tort of negligence”

and two authorities are cited for that proposition.
In Kralj –v- McGrath [1986] 1 All ER 54, Woolf J (as he then was) said at p.61:
“It is my view that it would be wholly inappropriate to introduce into claims of this sort, for breach of contract and negligence,  the concept of aggravated damages.  If it were to apply in this situation of a doctor not treating his patient in accordance with his duty, whether under contract or in tort, then I would consider that it must apply in other situations where a person is under a duty to exercise care.  It would be difficult to see why it could not even extend to cases where damages are brought for personal injuries in respect of driving.  If the principle is right, a higher award of damages would be appropriate in a case of reckless driving which caused injury than would be appropriate in cases where careless driving caused identical damages.  Such a result seems to be wholly inconsistent with the general approach to damages in this area, which is to compensate the plaintiff for the loss that she has actually suffered, so far as it is possible to do so, by the award of monetary compensation and not to treat those damages as being a matter which reflects the degree of negligence or breach of duty of the defendant.”

While it is not necessary for the purpose of this judgment to go into the facts of that case, which was an action for negligence against a consultant obstetrician, it is sufficient to say that the expert evidence was that the treatment afforded to the plaintiff was “horrific” and “completely unacceptable”.  Those are epithets which are not often found in cases of medical negligence and the trial judge did not dissent from the description by counsel for the plaintiff of the defendant’s conduct as “outrageous”.  

The second authority cited is A.B. –v- Southwest Water Services Limited [1993] QB 507.  That was a case in which the plaintiffs suffered ill effects as a result of drinking contaminated water from the defendant water undertaker’s drinking water system.  The plaintiffs claimed exemplary and/or aggravated damages, alleging that the defendants had acted in an arrogant and high handed manner in ignoring complaints made to their customers and had also deliberately misled them by telling their customers that the water was safe to use and drink when they knew that statement was unfounded.  In the Court of Appeal, it was held that the plaintiffs could not recover exemplary damages on the facts.  The head note continues:
“Furthermore, the plaintiffs could not claim aggravated damages for their anger and indignation at the defendants’ high handed conduct because the plaintiffs could only claim compensatory damages, and anger and indignation were not proper subjects for compensatory damages.  Accordingly, the claim for aggravated damages would also be struck out … dictum of Woolf J in Kralj –v- McGrath applied.”

In the course of his judgment in that case, Sir Thomas Bingham MR, (as he then was) said 
“The plaintiffs are of course entitled to be fully compensated for all they suffered as a direct result of the defendants’ breach of duty.  The ordinary measure of compensatory damages will cover all they have suffered as a result of that breach, physically, psychologically and mentally.  Full account will be taken of the distress and anxiety which such an event necessarily causes.  To the extent that any of these effects was magnified or exacerbated by the defendant’s conduct, the ordinary measure of damages will compensate.  The question is whether in addition to that full compensatory measure; the plaintiffs have pleaded a sustainable claim for additional compensation by way of aggravated damages.  This is claimed in para. 27 on the basis that the plaintiff’s feelings of indignation were aroused by the defendant’s high handed way of dealing with the incident.  I know of no precedent for awarding damages for indignation aroused by a defendants conduct.  Defamation cases in which a plaintiff’s damages are increased by the defendant’s conduct of the litigation (as by aggressive cross-examination of the plaintiff or persistence in a groundless plea of justification) are not in my view a true exception, since injury to the plaintiff’s feelings and self esteem is an important part of the damage for which compensation is awarded.”

There is another English decision, which is referred to in the judgment of the learned trial judge in this case, of Appleton and Others –v- Garrett [1996] BIQR P1 which is not at first sight easy to reconcile with the decisions to which I have just referred.  In that case, it was found that a dentist had carried out treatment which was, to his knowledge, unnecessary, that he had deliberately concealed the truth from his patients so as to ensure that they did not withdraw their consent and that he had done all of this for financial gain.  The plaintiff was awarded aggravated damages, but it should be noted that the action was framed in trespass and that would seem to be the explanation why aggravated damages were thought to be appropriate.  

Appleton and Others –v- Garrett was referred to in the judgment of this court in Cooper –v- O’Connell (unreported; judgment delivered 5th June 1997).  In the course of my judgment in that case which was also against a dentist, but one framed in negligence only, I distinguished Appleton and Others –v- Garrett, on the ground that the conduct of the defendant in Cooper –v- O’Connell, while undoubtedly amounting to negligence of a serious degree, could not be equated to the conduct of the defendant in Appleton and Others –v- Garrett.  There is no reference in the judgment to the other English authorities to which I have referred and I think it is reasonable to assume that they were not cited to the court.

Those authorities were not cited in the present case either and, in those circumstances, it would not be appropriate for the court, in my view, to hold that there are no circumstances in which, in actions for negligence or nuisance, aggravated damages may be awarded.  That question can be left for a case in which it is fully argued.  In the present case, however, I am satisfied that, while the defendants were unquestionably guilty of what the trial judge described as “the grossest negligence”, that factor, of itself, is not sufficient to entitle the plaintiff to aggravated damages in the absence of circumstances such as those referred to in the judgment of Finlay CJ in Conway –v- Irish National Teachers Organisation or factors of a similar nature.  

I would allow the appeal of the defendants in respect of the award of aggravated damages and substitute therefor an order awarding the plaintiff damages of £45,000.