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Topic 6- Nervous Shock (IE: The Irish Position (Alcock does not form part…
Topic 6- Nervous Shock
Development of the Tort
Scepticism
19th century prevailing view
- subject and variable
- court exposed to fraudulent claims
- floodgate concerns
Tort of nervous shock- relates to mental injuries suffered by 1st hand witness to an even
- more controversial= 3rd pary claims where P witnesses the injury/threatened injury/aftermath and develops reactive psychiatric injury
Laaw has restricted liability in such cases by imposing additional requirements in DOC
- Over last three decades, courts increasingly sought to limit the scope of liability for psychiatric illness in both IE and UK
Zone of Danger
Early cases limited to 'zone of danger'
- First case where damages were succesfully claimed for nervous shock was
Byrne v Southern and Western ry:
Facts: P sitting in a waiting room in Limerick junction station when train crashed through walls of the room
- P suffered no physical injuries but was traumatised by incidednt
Held: Successfully sued for nervous shock
- awarded damages of £325 n basis he had suffered mental anguish resulting in damage to his mental health due to fact he had been placed in imminent danager of foreseeable injury by negligence of P
WHERE IT WAS REASONABLY FORESEEABLE P COULD SUFFER PHYSICAL INJURY- BY BEING PRESENT AT THE SCENE- HEN COMPENSATION SHOULD BE AWARDED FOR PSYCHIATRIC INJURY
Bell v Great Norther Railway Co:
Facts: P passenger in carriage unhooked from D's rain and down a hill
- nobody physically injured but did panic and suffer shock
Held: Court awarded damages for nervous shock
- Recognised that a psychiatric injury could be every bit as debilitating as a physical one
- The only question to be considered, in my opinion, are: was the health or the capacity of the P for the discharge of her duties and enjoyment of life affected by what occured to her whilst in teh carriage? Next, was this caused by negligence of the Ds?
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IE: The Irish Position
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Kelly v Hennessy: P arrived at hosptial soon after an accident involving her H and daughters and suffered psychiatric damage as a result of the distressing scenes she witnessed there
Hamilton CJ identified a number of elements which were necessary to establish liability for nervous shock
- Suffered a recognizable psychiatric illness
- Illness must have been 'shock induced'
- Nervous shock must have been caused by D's act or omission
- Nervous shock 'by reason of actual or apprehended physical injury to the P or a person other than P
- The D owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in form of nervous shock
One point of interest= Denham J's judgements- proximity emphasised
- This case turns on the issue of proximity. These may include
a) proximity of relationship between persons
b) proximity of spatial context
c) proximity in a temporal sense
Also introduced language of primary and secondary victims into Irish law
- did not apply these concepts as rigidly as English Courts
CLEAR THE LAW IS THE 5 STEP TEST ABOVE
Mulally v Bus Eireann
Facts: P's H and three children seriously injured in bus accident caused by D's negligence
- P went to hospital and witnessed her fam in great distress
- Suffered PTSD
Held: Damage was reasonably foreseeable
- Took guidance from McLoughlin v O'Brien
- In reaching proximity requirements set out in McLoughlin
- I oonsider it reasonably foreseeable that a mother exposed to the expeierences herein would break down and suffer illness
- no policy in Irish law opposed to finding of nervous shock
Curran v Cadbury
Facts: P turned on a machine while a coworker was still insider carrying out repairs
- Gave evidence that she could hear his screaming and believed she had either killed him or seriously injured him
- Suffered psychiatric injury
Held: Injuries suffered were a reasonably foreseeable result of the employer's failure to take appropriate safety measures in terms of having a'kill-switch' for the machine
NOTE: Irish courts do not get into the sufficient ties of love and affection etc
- Proximity here seems to be from her involvement in pushing the button
Fletcher v Commissioner for Public Works:
Facts: P employed by D and during course of employment was exposed to asbestos dust
- Informed by medical advisers that here was a risk he could contract mesothelioma, but risk v remote
- Despite this, P worried excessively and developed reactive anxiety neurosis
Held: On issue of foreseeability of damages concluded
No shock, no perception of a frightening event or its immediate aftermath, disturbing the mind of the witness to such an extent that a recognizable psychiatric illness supervened
[The] psychiatric disorder [in this case was] brought about
otherwise than by ‘nervous shock’; in this case, by a combination of anger and anxiety which
was the result of the plaintiff having been informed of his exposure to the risk of
contracting mesothelioma because of his employer’s negligence … This is uncharted
Cuddy v Mays
P was hospital porter who suffered psychiatric injury in aftermath of a fatal car accident when several members of his family brought to hospital where he worked
Held: Injuries reasonably forseeable
- while it may not have been foreseeable P would be at work, it was foreseeable he would attend hospital and would have equally been exposed to traumatic scenes
Kearns J rejected idea as brother of victims he did not have sufficient proximity ot the victims
- Sufficiently proximate relationship to allow foreseeability
Devlin v The National Maternity Hospital
Facts: P suffered psychiatric trauma upon learning organs of their still born baby had been retained by D hospital without their consent
HC: Claim dismissed on basis they had not established 4th limb in Kelly
- that nervous shock must have been by reason of 'actual or apprehended physical injury to the P or a person other than the P'
SC: Affirmed
- Interesting, counsel argued fourth limb should be broadened on public policy grounds
- Law as it stands does not entitle them to damages and I would not extend the law
Bystanders
McFarlane v EE Caledonia Ltd
Facts: Oil right went on fire in North Sea
- witnessed horrific scenes from boat nearby
Held: claim rejected
- No connection to actual victims and was't himself in danger of being a victim
White v Chief Constable of South Yorkshire
Facts: P were policemen who attended at Hillsborough Disaster site or at aftermath
Held: Felt policy dictated these Ps should not recover
- Their position compared to that of bereaved families
HC dealt with issue of 'shock induced
SC v The Minister for Health and Children
Facts: P claimed under statory redress scheme for dependents of those infected with Hepatitis C from contaminated blood products
- His father had gone to hospital with apparenly benifn foot infection, and within days at death's door
- After fortnight he was taken home and laid out in the dining room of house, dependent on morphine and oxygen
Held: relevant caselaw was considered when dealing w a claim under the statutory scheme
- Decided that it was a requirement the illness be 'shock induced'
;I have no doubts the environment in St James' Hisptial and within he home in eh days and weeks prior to CC's death was horrendous
- Accordingly, P entitled to recover
Murray v Budds: SC confirmed damages would not be recoverable for 'worry and stress' arising from an alleged failure to assign counsel the day before his criminal trial, on grounds damages could not be awarded for worry and stress in absence of recognized psychiatric injury