We were recently approached by a client who said that the hospital he had attended recently had written to him saying that certain medical instruments used in the treatment of him had not been properly sterilised and that he was therefore at risk of the dreadful CJD illness.
Our client was a young man who was clearly enormously upset at the idea that he had been exposed to the risk of this life threatening disease. CJD is a particularly distressing disorder, which came to the public attention many years ago when cattle began to contract it and it was known as “mad cow disease”.
We were concerned that there was a conflict between two types of legal precedent. You may recall the case of Fletcher v. Commissioners of Public Works. This was a case where the plaintiff was employed as a general operative in Leinster House and who became aware that for four years, he was brought into contact with significant amounts of asbestos. The High Court found that the plaintiff should not have been obliged to work in dangerous conditions and as his employer knew of the dangers concerning inhaling asbestos particles, they were grossly negligent. In the Supreme Court, the High Court decision in favour of the plaintiff was overturned. The Supreme Court said that the case was not similar to nervous shock cases as there was no shock in the sense of a “sudden perception of a frightening event or its immediate aftermath”. The court’s decision was that they would not award compensation for a purely psychiatric injury arising from grief and mental anguish if that grief or mental anguish was not caused by a physical injury.
If I suffer a very minor injury in for instance a road traffic accident but I had a pre-existing psychiatric condition, which subsequently becomes symptomatic as a result of the accident and I suffer catastrophic effects and I have to leave my job, I will be compensated in full. The Supreme Court however say that if I did not suffer any physical injury but I received a shock and this triggered the same type of psychiatric illness, I cannot claim. There is no logic to this and it appears to me that the Supreme Court made a decision based on policy rather than logic. Many cases over the years have been dismissed on the basis that to allow the case will ‘open the flood gates’ for similar types of injuries and this appears to be one of those cases.
We therefore had to return to our client to say that shock alone, not associated with any type of physical injury, will not give rise to a claim even if he suffers genuine and real psychiatric damage as a result of the other side’s negligence.
Kevin Brophy