Case Notes: Liability to `fear-of-disease’ victims for negligent exposure to asbestos – the position of the `worried well’ under Irish law

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FACTS AND PROCEDURES

The Irish Supreme Court has recently had to decide on the availability of damages in negligence for nervous anxiety suffered by a plaintiff as a result of negligent exposure to asbestos during the course of his employment and his irrational fear of contracting mesothelioma in the future.1 The plaintiff, who worked as a general operative in Leinster House, the seat of the Irish legislature, was engaged between 1985 and 1989 in assisting plumbers, electricians and fitters in the maintenance of the central heating system and was regularly obliged to remove lagging in order to enable these tradesmen to get access to pipe work. This work resulted in significant quantities of asbestos dust being released into the air in confined areas and the trial judge found as a fact that he had inhaled very large quantities of asbestos dust over the relevant period. O’Neill J concluded on the facts that the defendants were guilty of ‘gross negligence’ and that no question of contributory negligence arose. In his expert evidence, Prof. Luke Clancy, a consultant respiratory physician and acknowledged expert on respiratory diseases resulting from exposure to asbestos, testified that the plaintiff had been exposed to the risk of developing asbestosis and was also at an increased risk of lung cancer, but that he had not contracted either disease and that it was very unlikely that he ever now would. More significantly, however, he also testified that, as a result of his exposure to asbestos, the plaintiff was at risk of contracting mesothelioma in later life, though he concluded that this risk was ‘very remote’. He based this conclusion on the fact that cases of mesothelioma are quite rare, with his practice encountering no more than three or four cases a year despite the fact that exposure to asbestos is widespread throughout the whole community.

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