The High Court awarded Bridget Brogan €25,000 for emotional distress after Dublin Airport Authority (DAA) retained a private investigator’s report on her employment file for almost six years beyond the period the court considered justified.
In a judgment delivered on 21 December 2021, Ms Justice Murphy found the DAA should have removed the report after Ms Brogan discovered it in December 2014 and requested access to her file. The authority also failed to remove it when it received a further data access request from her solicitor in January 2016. The court described that failure as deliberate, unlawful and “cynical, unworthy of a semi-state body”.
The report followed five days of surveillance in February 2009, when Ms Brogan was absent from her job as a Dublin Airport retail assistant with back problems. The investigator recorded her daily activities and used a telephone ruse to ask whether she would teach dancing classes. The judge found the DAA had been justified in commissioning surveillance given Ms Brogan’s lengthy absences and information suggesting she might be teaching dance. However, the report was not used for its apparent absence-management purpose. The court also found that photographs should not have identified her children.
Ms Brogan said discovering the report caused shock, worry and concern that she and her family might still be watched. The court accepted that she experienced genuine emotional distress and hypervigilance in the immediate aftermath of discovering it, and found that distress was foreseeable. It said the DAA could have reduced her distress by removing the report and telling her it had done so.
The court did not accept that Ms Brogan suffered the psychiatric injury alleged in 2016. It found the available medical evidence suggested an exacerbation of a pre-existing mental disorder, and that her later anxiety was affected by substantial personal and financial pressures. The judge also found her claims that her return to work, a November 2016 suspension and refusal to let her return in October 2017 worsened a psychiatric injury were unproven. The court found the October 2017 decision was justified by occupational health advice that she was unfit for work pending review. It also rejected her bullying and ill-treatment complaints.
The judge held that Ms Brogan’s failure to use available data protection remedies amounted to contributory negligence of the highest order and extinguished damages for any exacerbation of a pre-existing condition. For the separate emotional distress caused by the DAA’s retention of the report, the court assessed damages at €25,000, accounting for one year after disclosure and Ms Brogan’s ability to mitigate her loss. The judgment does not state any further order.