Nervous shock cases - Lecture notes 8 PDF

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nervous shock notes ...

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Nervous shock cases =when compensation is due for negligently inflicting psychological damage. Uk Approach- Historically  no compensation was awarded [Lynch and Knight 186111 ER 854]. ‘Mental pain and anxiety the law cannot value and does not pretend to regress when the unlawful act causes that alone” ie compensation does not flow from mental pain alone. There wasn’t much value placed on mental injury in Victorian times. Originally only prepared to award if accompanied by physical injury. Irish Approach, much more forward-looking. [Byrne case] Byrne v Southern and Western Ry Co Court of Appeal, February 1884.

Superintendent of a railway. There was a buffer between his office and the railway side. Railway points were negligent left open. A train ended up breaking down the buffer and a wall of his office. Plaintiff sustained nervous shock.

Decided in favour of the plaintiff. Whilst he had not suffered any physical injuries, the nervous shock he suffered was manifestly reasonably foreseeable.

Privy Council of Victoria Railway Commissioners v Coultas [1887]

The appellant’s gatekeeper had negligently invited the plaintiffs to cross a railway line as a train approached. There was no collision, but the plaintiff sought damages for physical and mental injuries from shock.

First verdict in her favour but on appeal Privy council reversed decision. Narrow approach taken.

Bell v GN Ry Co (1890) 26 LR (lre) Irish took Byrne approach.

Plaintiff a passenger in defendants train, part of the train became unhooked at a high speed down a hill. The carriage suddenly stopped and passenger thrown. Plaintiff suffered nervous shock, mental health, severe injuries.

At trial, plaintiff won. On appeal, contrary to privy council court said it is incorrect to say that a mental injury (ns) cannot be remedied. (441-442)

13 App Cas 222

Irish preferred Byrne approach.

Irish Courts => Reasonable, Foreseeability, Negligence. A person suffering nervous shock leading to injury could recover damages from the person who was negligent. Not necessary that the NS was accompanied by physical injury. Problematic in terms of striking the balance of the class of plaintiffs which can seek damages. Too widely (floodgate of litigation), too narrowly then legitimate plaintiffs will not be able to seek damages. Hambrook v Stokes Brothers [1925] 1 KB 141.

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the plaintiff mother saw a runaway lorry careering downhill towards where she had just left her children around the corner. She feared greatly for their physical safety.

recognised as deserving of compensation, the situation where the plaintiff’s immediate fear of physical injury was not for himself, but was for his children nearby.

courts extended recovery for shock induced psychiatric consequences when the threat of the immediate physical injury was to a coworker nearby. Dooley v Cammel Laird & Co Ltd and Mersey Insulation & Co Ltd [1951] 1 Lloyd’s Rep 271.

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courts took the view that the Good Samaritan (the rescuer), who tried to assist in the aftermath of an accident and suffered psychiatric injury, could also be compensated in appropriate circumstances. Chadwick v British Railways Board  [1967] 1 WLR 912; Frost v Chief

Constable of South Yorkshire [1999] 2 AC 455. In Attica v British Gas Plc  [1988] QB 304, the psychiatric illness to the plaintiff was caused by seeing his house on fire due to the defendant’s negligence: the English Court of Appeal refused to strike out the plaintiff’s claim in limine .

=> “physicality of the events dominated the immediate environment in which the plaintiff found himself at the time of the accident.” binchy UK Cases The House of Lords in White v Chief Constable of South Yorkshire  White v Chief Constable of South Yorkshire [1999] 1 All ER 1 held that, whereas the duty of care owed to primary victims was non-problematic, secondary victims had to surmount a series of hurdles, inspired by policy considerations, which had been erected in McLoughlin v O’Brian  McLoughlin v O’Brian  [1983] AC 410 and refined in Alcock v Chief Constable of South  Yorkshire Police. McLoughlin v O’Brian [1983] AC 410 (HOL)

Husband and children involved in a traffic accident caused by negligence of defendant. 1 child died. Plaintiff 2 miles away. A witness to the accident told the plaintiff and brought her to see remaining members of her family. Suffered depression and personality changes.

Emphasised that recovery not limited to those who were participants in the event, and who feared that they or a close relative would suffer some sort of personal injury. Confirmed to extend to those who came upon the immediate aftermath. (1) class of persons, only very close (2) proximity to accident, see/hear/see aftermath (3) means by which shock was caused.

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (HL(Eng) 1991)

Arose from Hillsborough tragedy. Families sued negligent police for nervous shock.

In this case, plaintiff was engaged to victim (was included reasonably foreseeable) (2) proximity, just being informed is not a sufficient basis to recover. Must witness/hear it or witness immediate aftermath.

Key Irish Case Kelly v Hennessy [1995] IESC 8

Plaintiffs husband, daughters severely brain damaged as a result of an accident caused by negligence of defendant. Plaintiff heard the news via telephone. Displayed signs of nervous shock vomiting, ill on journey to hospital. Since led a traumatised existence. PTSD and depression.

Laid down a 5 part test. (1) Must be established that he/she actually suffered a recognised physiatric illness. (2) Such illness must be shock-induced (3) the nervous shock must be caused by the defendant’s act/omission (4) The nervous shock must be by reason of actual/ apprehendable physical injury to the plaintiff or another person (5) Defendant must owe plaintiff a duty of care not to cause him/her a reasonably foreseeable injury in the form of nervous shock. Hamilton CJ decided that the law permitted recovery where the plaintiff came upon the immediate aftermath either at the scene or

the hospital. Emphasis on close relationship needed. Primary Victims- exposed to physical injury, risk, participants involved.they may obtain compensation for unforeseeable psychiatric injury  AC 155. and they are not subject to the policy limitations prescribed by the House of Lords in Alcock . - Fogarty v Hannon  [2011] IEHC 13, where the plaintiff, who had been in a traffic accident in which she sustained soft tissue injuries, suffered significant psychological sequelae, Peart J declined to award damages for these sequelae on the grounds that they were not reasonably forseeable (expressed as their not being “a forseeable or reasonable consequence of this accident”). He noted that there had not been a categorical statement by the psychiatrist that the accident had been the cause of the plaintiff’s psychological symptoms apart from the shock experienced at the time of the accident, which could “be regarded as normal and perhaps inevitable”. Peart J did not raise any question of an “egg shell skull” issue.

Secondary Victims- bystanders, spectators.

Mullaly v Bus Éireann [1992] ILRM 722

Husband and children involved in serious bus incident due to negligence of defendants employee. She was away at the time informed by telephone and by a visit from garda. Heard they were ‘very bad’, Went to the hospital, bodies everywhere, “like a war scene’. Extremely distressing. Became hysterical. Paul died. Personality change. PTSD

Post-traumatic stress disorder “is a psychiatric disease”. The plaintiff’s condition had been caused by the accident and its aftermath, not her grief. Applying “the ordinary criteria of reasonable foreseeability” to the facts, Denham J considered that it was readily foreseeable that a mother exposed to the experience that the plaintiff had gone through would break down and suffer illness.

O’Connor and Anor v Lenihan

plaintiff sued for damages arising out of the retention of the organs of their two infants who died while the mother was giving birth in hospital.

Peart J, held in dismissing the case, on a preliminary application, that he was “unable to discover from any evidence [given by the psychiatrist] any recognised psychiatric illness having been suffered by Angela [the mother], even though her anger and upset and grief are palpable…”

plaintiff was a fireman who was employed by the defendant. He was wrongly informed by defendant that he had succeeded in an internal promotional exam. Subsequently, the plaintiff was informed there had been an error and the result was corrected. He sued the defendant.

Clark J held that although the defendant owed a duty of care to the plaintiff in the matter and there had been a breach of that duty, since there was no recognised psychiatric illness in the sense that term was used in Kelly v Hennessy ,

O’Connor v Lenihan [ 2005] IEHC 176.

Larkin v Dublin City Council [2008] 1 IR 391.

Lisa Sheehan v Bus Éireann/Irish Bus and Vincent Dower [2020] IEHC 160,

Plaintiff driving and came upon the scene of a fatal accident between a car and a bus. Did not see the incident but debris hit her car and caused her to stop. She discovered a partially decapitated body. Developed PTSD as a result. Anxiety, flashbacks ultimately leaving job.

Satisfied that plaintiff was a primary victim on the basis her car was struck by debris from accident. Defendant tried to argue she was a secondary victim. Keane J acknowledged that this type of categorisation of victims was not applied by the Irish courts and that the law on primary/secondary victims in nervous shock was far from settled.

Courtney v Our Ladies Hospital and Others [2011] IEHC 226 the requirement that the psychiatric injury was “shock-induced”, does not mean that the shock must be a single act or event. In Courtney , the Court acknowledged that the shock in question was prolonged and covered a period of more than 12 hours.

Fear of Diseases Cases Fletcher v Commission ers for Public Works [2003] 1 IR 465:

Person suffered mental shock on account of being told that he had some risk of serious future illness. High Court was willing in principle to find the person who caused the initial illness or injury liable for nervous shock.

SC reversed decision as the risk was not foreseeable by the defendant in the circumstances. Willing in principle to recognise that a person could suffer a recognisable psychiatric disorder as a result of taking medical advice and being informed he was at risk of a serious disease, even though he had not contracted this. The eggshell rule would be applicable, in principle. However, the court then employed policy reasons to refuse recovery. The implications for the healthcare field could be significant. In essence, the claimant’s fear was irrational.

Does it make any difference that the witness is not related to the victim? Chadwick v British Transport Commn  [1967] 2 All ER 845

What of the case where the “victim” emerges unscathed? May a person who is merely informed King v Phillips [1953] 1 QB 429...