Mansoor -v- MJELR Ors
Neutral Citation IEHC 389
High Court
Judgment was delivered on October 4th, 2010, by Mr Justice Vivian Lavan
Judgment
A doctor who suffered shock, distress and anxiety when a jar of urine was thrown over him during a blood-alcohol test in a Garda station was not entitled to damages.
Background
Dr Akhtar Mansoor was born in Pakistan and had lived in Ireland since 1970.
He regularly provided medical services to the Garda Síochána in taking blood or urine samples from persons suspected of committing drink-driving offences.
On the night of March 20th, 2000, he was called to Tullamore Garda station to take a sample from a Declan Foran, who had been charged with driving while under the influence of alcohol. He was asked to provide a urine sample, which he provided in a jug which he threw over Dr Mansoor.
Dr Mansoor discarded his clothes and bathed himself a number of times, but was unable to rid himself of feeling dirty and of the taste of urine.
He visited his local GP complaining of feeling unwell and stressed, and was referred to Dr M Bhamjee, a psychiatrist based in Co Clare, whom he saw in 2001.
Dr Bhamjee prescribed sleeping pills and tranquillisers and referred in his evidence to the fact that, as a devout Muslim, Dr Mansoor felt unable to read the Koran until he was cleansed.
Dr Mansoor also felt he may have contracted a sexually transmitted disease during the incident.
He consulted a genitourinary specialist, Derek Freedman, in 2006.
Mr Freedman concluded, having reviewed the literature, that such a risk was “implausible” and regretted that, despite his medical training, Dr Mansoor was unable to conduct a more “objective appraisal” of the infection risk.
The plaintiff commenced proceedings in 2003 claiming that the Minister for Justice was negligent in exposing him to the risk his department should have been aware of, failing to take adequate care of him and provide him with adequate protection while he was engaged in his duties as a doctor.
His counsel argued that he was an employee of the Garda Síochána at the relevant time and they owed him a duty of care under employers’ liability.
He also argued that, given the condition of Mr Foran, the incident was foreseeable.
He claimed that allowing the prisoner to carry the urine was a breach of normal procedure, and it should have been carried by a member of the Garda Síochána.
Counsel for the defendant argued that Dr Mansoor was employed as an independent contractor, not a direct employee.
The garda on duty at the time said that it had always been the practice to have the suspect carry the urine, to avoid an allegation of contamination.
Decision
Mr Justice Lavan first examined whether Dr Mansoor was an “employee” and concluded that “the mutuality of obligation” test was not satisfied in this case and he was not an employee, but an independent contractor.
This did not mean that the defendants did not owe him a duty of care, but this only extended to risks that were reasonably foreseeable and preventable.
All the authorities revealed that extreme neglect or failure to respond to an obvious and realistic danger must be present before liability will be imposed, he said
Applying these principles, it was clear the defendants had not breached their duty of care.
Mr Foran, though drunk, did not pose an obvious or foreseeable risk to the plaintiff.
Mr Justice Lavan added the observations that he felt it important to comment on the plaintiff’s fear he had contracted an STD during the incident. He concurred with the views of Mr Freedman that, as a practising general practitioner, he should have been aware there was an incredibly remote chance of this occurring.
“There is a pervading view in the general public about the risk of contracting such diseases that seems to be somewhat ill-informed and irrational,” he said, quoting a recent judgment from Ms Justice Mary Irvine where a number of gardaí feared they had contracted an STD during the course of their duties.
He said he would echo the views of Ms Justice Irvine where she said she hoped her judgment would bring an end to unwarranted and unnecessary claims from those who feared infection and sought compensation from the State. He said it was important for people to seek appropriate medical advice and then accept it and move on.
He refused the reliefs sought.
The full judgment is on www.courts.ie
John Shortt SC, Declan McGovern SC and Stephen Groarke BL, instructed by Henry Arigho, Moate, Co Westmeath, for the plaintiff; David McGrath SC and Andrew Walker BL, instructed by the State Claims Agency, for the defendant.