Brogan v The Dublin Airport Authority (Approved)

Factual and Procedural Background

The Plaintiff initiated a personal injury claim against the Defendant for psychiatric injury allegedly sustained due to the presence of a confidential investigation/surveillance report on her personal file since 2009. This report was commissioned by the Defendant while the Plaintiff was on sick leave for back pain. The Plaintiff contended that the retention of this report, along with subsequent treatment by the Defendant upon her return to work in 2016, a disciplinary suspension in November 2016, and refusal to allow her return to work in October 2017 despite a medical certificate of fitness, exacerbated her psychiatric injury.

The claim evolved from an initial allegation of breach of constitutional privacy rights in 2017 to a broader personal injuries summons alleging negligence, breach of contract, statutory breaches including the Data Protection Acts, ill-treatment, and breach of trust and confidence by the Defendant.

The Defendant denied liability, challenged the Plaintiff to prove all pleaded terms and breaches, and asserted that any injury suffered was due to pre-existing personal stressors and not caused by the Defendant. The Defendant also pleaded contributory defenses including non-foreseeability, exercise of reasonable care, and failure by the Plaintiff to notify of work-related stress.

Voluntary discovery was exchanged, and the hearing proceeded with limited witness testimony and medical reports admitted without oral evidence. The Plaintiff's evidence included her personal history, discovery of the surveillance report on her file in 2014, and subsequent interactions with the Defendant and her legal advisors.

Legal Issues Presented

1. Whether the Defendant breached the Plaintiff's constitutional right to privacy by commissioning, retaining, and failing to remove a confidential surveillance report from the Plaintiff's personal file.
2. Whether the Defendant was negligent or in breach of contract or statutory duties, including obligations under the Data Protection Acts, in relation to the Plaintiff's employment and personal data.
3. Whether the Plaintiff suffered a compensable psychiatric injury caused or exacerbated by the Defendant's actions or omissions.
4. The extent to which the Plaintiff mitigated her loss and the impact of any contributory negligence on her claim.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff claimed psychiatric injury resulting from the presence of a confidential private investigator's report on her personal file, which was commissioned without her knowledge and retained unlawfully for many years.
• She alleged that the Defendant's failure to remove the report after discovery in 2014 and subsequent data access requests violated her rights under the Data Protection Acts and her constitutional right to privacy.
• The Plaintiff contended that her treatment upon return to work in 2016, the disciplinary suspension in November 2016, and denial of return to work in October 2017 aggravated her psychiatric injury.
• The Plaintiff relied on medical reports indicating depression and anxiety linked to the retention of the surveillance report and workplace issues.
• She argued that the Defendant's failure to comply with data protection obligations caused emotional distress and loss of trust.

Defendant's Arguments

• The Defendant denied liability for breach of contract, negligence, statutory duty, or constitutional rights.
• It asserted that any psychiatric injury was caused by pre-existing personal stressors, including prolonged abusive personal relationships and financial difficulties, not by Defendant's conduct.
• The Defendant contended that the surveillance was justified given the Plaintiff's prolonged absence and suspected malingering.
• The Defendant argued that it complied with occupational health and absence management policies and that the Plaintiff was treated fairly and with support on her return to work.
• The Defendant highlighted the Plaintiff's failure to notify it of the alleged cause of her work-related stress and her failure to mitigate loss by not invoking remedies under the Data Protection Acts promptly.
• The Defendant admitted procedural errors in the suspension process and acknowledged that the surveillance report should have been removed earlier but offered no explanation for the failure.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court undertook a detailed examination of the Plaintiff's personal, medical, and employment history, noting significant personal stressors including a decade-long abusive relationship, financial pressures, and multiple periods of absence due to physical and psychological health issues.

The court found the Defendant justified in commissioning surveillance in 2009 given the Plaintiff's extensive absences and suspicious activities such as Irish dancing classes while certified unfit for work. However, the court criticized the Defendant's failure to remove the surveillance report from the Plaintiff's file after it ceased to be relevant, noting this was a breach of the Data Protection Acts and constituted unlawful retention of personal data.

The court observed that the Plaintiff and her legal advisors failed to invoke available statutory remedies under the Data Protection Acts promptly, which constituted contributory negligence, significantly undermining the claim for psychiatric injury attributed to the Defendant's conduct.

Medical evidence was considered, with the court favoring the Defendant's expert who diagnosed a pre-existing post-traumatic stress disorder (PTSD) unrelated to the Defendant's actions, with the surveillance report potentially exacerbating but not causing new injury. The court noted the absence of oral medical evidence limited exploration of conflicting medical opinions.

The court found that the Plaintiff was treated fairly upon return to work, received support including counselling, and that the disciplinary suspension was procedurally flawed but resolved in her favor. The refusal to allow return to work in October 2017 was justified based on medical assessments.

Overall, the court concluded that the Plaintiff's psychiatric injury claim was unproven and that her emotional distress was largely attributable to personal circumstances and exacerbated by litigation rather than Defendant's wrongdoing.

Nonetheless, the court recognized that the Defendant's deliberate failure to remove the surveillance report and to acknowledge its error caused genuine and foreseeable emotional distress immediately following the Plaintiff's discovery of the report in 2014.

Holding and Implications

The court held that the Plaintiff was entitled to damages for negligent infliction of emotional distress caused by the Defendant's unlawful retention of the private investigator's report on her personal file.

The court awarded €25,000 in damages to the Plaintiff for emotional distress sustained for a period of one year following the disclosure of the report.

However, the court rejected the broader personal injury claim for psychiatric injury, finding it unproven and substantially mitigated by the Plaintiff's failure to act under the Data Protection Acts and the influence of longstanding personal stressors.

No new legal precedent was established. The decision underscores the importance of employers complying with data protection obligations promptly and the duty of claimants to mitigate loss by utilizing statutory remedies.