In 1861, Lord Wensleydale described mental pain or anxiety as "something which the law cannot value and does not pretend to redress".1 It was not until 1884, in the case of BYRNE v THE GREAT SOUTHERN & WESTERN RAILWAY COMPANY (cited at 26 L.R. Ir.428), that the courts took their first tentative steps towards the recognition, and the evaluation, of a genuine psychiatric condition acknowledged by both the medical and the legal profession, and as worthy of compensation as any physical injury inflicted through negligence. Classified as an anxiety disorder, it follows on a painful event which is outside the range of normal human experience. It includes preoccupation with the event - that is intrusive memories - with avoidance of reminders of the experience. The illness, triggered by "nervous shock", is known as Post Traumatic Stress Disorder.

This series of articles attempts to explore, in the light of the Supreme Court decision in KELLY v HENNESSY ([1995] 3.IR.253), the evolution from the words of Lord Wensleydale, towards an increased understanding of the disorder, and the consequent recognition thereof by the courts, as evidenced by the following words of Denham J.:

 "I am satisfied that a person with a close proximate relationship to an injured person, such as the plaintiff, who, while not a participant in an accident, hears of it very soon after and who visits the injured person as soon as practicable, and who is exposed to serious injuries of the primary victims in such a way as to cause a psychiatric illness, then she becomes a secondary victim to the accident."2

KELLY v HENNESSY ([1995] 3.IR.253) came before the Supreme Court in March of 1995 by way of appeal from the High Court decision of Lavan J. delivered on 30 March 1993.

FACTS: On 14 April, 1987, the plaintiff's husband and daughter were severely brain damaged as a result of a road traffic accident caused by the negligence of the defendant. The plaintiff was not within sight or sound of the accident; she heard the news by telephone, whereupon she immediately began to exhibit symptoms of nervous shock. Having been driven to Jervis Street Hospital by neighbours, she there saw the injured members of her family in a distressing condition. The plaintiff's husband, and a second daughter who was less severely injured, remained in hospital until July 1987. The first daughter remained there until April 1988. The plaintiff had, since their discharge from hospital, been caring for her husband and daughter - both brain damaged - at home, with the daily help and support of her second daughter.

On the basis of his findings that the plaintiff had immediately gone into shock, had become ill, and continued to be ill on the journey to the hospital, had observed the condition of her family on her arrival, had thereafter led a traumatised existence, suffered from post traumatic stress disorder until 1992 at the earliest, and continued to suffer a serious depression, the learned High Court Judge held that the plaintiff was entitled to recover, as against the defendant, damages for her condition. Lavan J. assessed damages in the sum of £35,000 for past suffering and £40,000 for the future. The defendant appealed against the said judgment and order claiming, inter alia, that the plaintiff, by her refusal to engage trained help, and undergo treatment herself, had failed to mitigate her loss, and that the judge, by expressing doubt as to whether the plaintiff would ever fully recover from her condition, had by his judgment thereby suggested the possibility of a partial recovery. The defendant appealed the issue of quantum of damages, deeming them excessive and against the weight of the evidence. The Supreme Court,approving the case of McLOUGHLIN v O'BRIAN ([1983] 1.A.C.410) and the Australian case of JAENSCH v COFFEY ([1984] 155 C.L.R.549),and considering MULLALLY v BUS EIREANN ([1992] ILRM. 722) and DONOGHUE v STEVENSON ([1932] A.C.562),

HELD:

1. (per Hamilton C.J., and Egan J.), that in order to recover damages for nervous shock a plaintiff must establish:-

 a) that he or she actually suffered a recognisable psychiatric illness;

 b) that such illness was shock-induced;

 c) that the nervous shock was caused by the defendant's act or omission;

 d) that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or to a person other than the plaintiff;

 e) that the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general.

2. (per Hamilton C.J., and Egan J.), that the law permitted the recovery of damages for nervous shock and psychiatric illness induced thereby where a plaintiff came on the immediate aftermath of an accident - either at the scene or in hospital - involving a person with whom the plaintiff had a close relationship; and that in the instant case, the relationship between the plaintiff and those injured could not be closer.

 (per Denham J.), that where a person with a close proximate relationship to an injured person, while not a participant in an accident, heard of it very soon afterwards and visited the injured person as soon as practicable and was exposed to the serious injuries of the primary victim, that person became a secondary victim to the accident.

3. that there had been credible evidence to support the trial judge's findings that the plaintiff's post traumatic stress disorder and depression were caused by nervous shock in the immediate aftermath of the accident rather than by the strain of caring for her family; his finding that the post traumatic stress disorder was a psychiatric illness; and his finding that the plaintiff had not failed to mitigate her loss, and that accordingly the court could not interfere with those findings. (HAY v O'GRADY. [1992] 1 IR.210 ) applied.

4. (Denham J. dissenting), that in relation to future damages, the trial judge, in finding that the plaintiff would never fully recover, had anticipated that she would make a partial recovery; and that in the circumstances, the figure of £40,000 was excessive and should be reduced to £20,000.
 (per Denham J.), that the trial judge had clearly taken into account that the plaintiff might make a partial recovery, and that in the circumstances, the figure of £40,000 was not excessive.

The only interference by the Supreme Court with the High Court decision, then, was in the reduction of the amount of future damages awarded to the plaintiff from £40,000 to £20,000.
Hamilton C.J. explained this at p.265:

 "With regard to damages for the future, the plaintiff was at the date of the hearing, fifty-two years of age and the learned trial judge found that she continued to suffer from a serious depression and that having regard to all of the evidence, he doubted whether he could be satisfied that she will ever fully recover from what he perceived to be a clear psychiatric illness.
 The onus was on the plaintiff to establish on the balance of probabilities that she would not recover from this illness and if she had discharged this onus I would have no hesitation in accepting that the amount awarded by the learned trial judge was fair and reasonable.
 The learned trial judge, however, does not appear to have been so satisfied and refers to a full recovery. He appears to anticipate at least a partial recovery.
 In these circumstances, I consider the award of £40,000 to be excessive and would substitute an award of £20,000 under this heading for damages." (Egan J. concurring; Denham J. dissenting).

The plaintiff had discharged her onus with regard to each of the points a) to e) in point 1. of the Supreme Court judgment, the learned judges relying upon, and approving, the Australian case of JAENSCH v COFFEY 3  in which the plaintiff, who was not at the scene of an accident in which her husband was injured but saw him in his injured state at the hospital, "..personally perceived the aftermath of the accident, although not at the scene but at the hospital...She was, in my opinion, a 'neighbour' of the appellant within Lord Atkin's principle;4  it was foreseeable that a person in her position would suffer nervous shock...".
The plaintiff having suffered nervous shock as a result of what she had seen and been told, the driver of the car was held to owe a duty of care to her and to have been in breach of that duty.

The Supreme Court was also guided, in the KELLY case, by the decision in McLOUGHLIN v O'BRIAN 5 in which Lord Wilberforce stated (@ p.418):

  "While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for nervous shock caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself."

Hamilton C.J. pointed out in KELLY v HENNESSY 6 that, even though in McLOUGHLIN's case and in JAENSCH v COFFEY,.." the plaintiffs were able to recover damages for nervous shock which they suffered as a result of injuries to members of their respective families which were not inflicted in their sight or hearing, nevertheless both the House of Lords and the High Court of Australia emphasised that the plaintiffs were present at, and personally perceived, the aftermath of the accident."

The learned Chief Justice went on to say that both the abovementioned courts had held that it was sufficient that the psychiatric illness which the plaintiffs suffered were as a result of what the plaintiffs saw or heard in the aftermath of the accident at the scene or even at the hospital where the injured relatives were taken as a result of the accidents.

It is proposed, over this series of articles, to analyse the five onuses of proof cited at point 1. of the Supreme Court decision in KELLY v HENNESSY, their origins, the precedents therefor, and their implications for the future.

Part 1 attempts to explore a) above, which states that in order to recover damages for nervous shock, a plaintiff must establish that he or she actually suffered a recognisable psychiatric illness.
 

 "A flight from traumatic reality into another world of madness" (Freud)

 "A loss - a turning away from oneself in awe, in horror and in fear" (Brian Keenan)

What is Post Traumatic Stress Disorder?

The World Health Organisation in its International Classification of Diseases 7  defines it as: "a prolonged depressive reaction, which is not specifiable as manic depression, but which may be psychotic or neurotic, is generally long-lasting, and which usually develops in association with prolonged exposure to a stressful situation or, it may be, with a single event".

Dr. Morgan O'Connell, in his generic report on psychological casualties resulting from the Hillsborough disaster of 1989, refers to the illness at point (12), as: "a new concept for an old problem (neurasthenia,shell-shock,nastalgia),which is classified as an anxiety disorder. It follows on a painful event which is outside the range of normal human experience. The disorder includes preoccupation with the event - that is intrusive memories - with avoidance of reminders of the experience."

Denham J. in MULLALLY v BUS EIREANN, 8 said (@ p.728):
"I accept the DSM III-R criteria for post traumatic stress disorder, as set out at page four of the article by Brian McGuire in the Irish Journal of Psychology 1990. For the purpose of this judgment, I find that post traumatic stress disorder is a psychiatric disease."  The learned judge went on to list the five criteria as follows:

- Exposure to a recognisable stress or trauma outside the range of usual human experience, which would evoke significant symptoms of distress in almost anyone,

- Re-experiencing of the trauma through intrusive memories,nightmares or flashbacks or intensification of symptoms through exposure to situations resembling or symbolising the event,

- Avoidance of stimuli related to the trauma or numbing of general responsiveness indicated by avoidance of thoughts or feelings, or of situations associated with the trauma, amnesia for important aspects of the trauma, diminished interest in activities, feelings of estrangement from others, constricted effect,sense of foreshortened future,

- Increased arousal indicated by sleep disturbance, anger outbursts, difficulty concentrating, hyper vigilance, exaggerated startle response, psychological reactivity to situations resembling or symbolising the trauma,

- Duration of disturbance at least one month.
 

The syndrome has always been with us, but under different guises and accorded varying degrees of understanding and dismissal.
 

The progressive acknowledgement of Post Traumatic Stress Disorder by the courts:
 

The Irish decision in BYRNE v THE GREAT SOUTHERN & WESTERN RAILWAY COMPANY ([1884] Unreported.cited @ 26 L.R.Ir.428), a decision ahead of its time, was the starting point from whence a whole series of decisions emerged which increasingly acknowledged and compensated victims of nervous shock who developed a post traumatic stress disorder.

FACTS: The plaintiff was awarded £325 by the Common Pleas Division, which was affirmed by the Court of Appeal, on account of the "great fright and shock" which he received when a train crashed through the wall of his office at Limerick Junction, where he worked as a superintendent in the telegraph office.

Palles, C.B. remarked with regard to the BYRNE case 9:

 "[I]t is a sad commentary upon our system of reporting that a decision so important and so novel has never found its way into our Law Reports."
 

It is submitted that the non-reporting of BYRNE v THE GREAT SOUTHERN & WESTERN RAILWAY deprived the plaintiffs in the 1888 case of VICTORIAN RAILWAYS COMMISSIONERS v COULTAS (13 App.Cas. 222), of an important precedent:
 

 "It is remarkable..." said Sir Richard Couch  "..that no precedent has been cited of an action similar to the present having been maintained or even instituted, and their Lordships decline to establish such a precedent."10

As a result, the defendants in the COULTAS case were able to rely, inter alia, upon an admiralty case - which involved not nervous shock but damage to cargo and loss of market - to prove remoteness of damage.11

A decision of the House of Lords on appeal from the Supreme Court of Victoria, the COULTAS case involved a near miss by a speeding train of the plaintiff, Mary Coultas. Her husband (and co-plaintiff) was allowed to drive the buggy in which they were travelling on to the tracks at a level crossing between Melbourne and Hawthorn. The negligence of the gate-keeper was not in dispute. Mrs. Coultas suffered a profound impression on the nervous system, impaired memory and eyesight, and the loss of her unborn child.

It was HELD, by the House of Lords, overturning the decision of the Australian court which had found for the plaintiffs, that the verdict could not be sustained, and that judgment must be entered for the defendants. Sir Richard Couch said (@ p.225), approving THE NOTTING HILL (9 P.D.105):

 "Damages arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning a nervous or mental shock, cannot under such circumstances, their Lordships think, be considered a consequence which, in the ordinary course of things, would flow from the negligence of the gate-keeper."...."damages must be the natural and reasonable result of the defendant's act; such a consequence as in the ordinary course of things would flow from that act."

The judgment in the COULTAS case has long been discredited. It was deemed "a remarkable case" by Palles C.B., the judgment of which assumed "as a matter of law, that nervous shock is something which affects merely the mental functions, and is not in itself a peculiar physical state of the body. This error.."   he said   "..pervades the entire judgment."12

Palles, C.B., in his judgment in BELL v THE GREAT NORTHERN RAILWAY COMPANY OF IRELAND ([1895]26 L.R.Ir.428), following BYRNE in preference to COULTAS, concluded (@ p.442) that:

 "..as the relation between fright and injury to the nerve and brain structures of the body is a matter which depends entirely upon scientific and medical testimony, it is impossible for any Court to lay down, as a matter of law, that if negligence cause fright, and such fright, in its turn, so affects such structures as to cause injury to health, such injury cannot be 'a consequence which, in the ordinary course of things would flow from [negligence, unless such injury] accompany such negligence in point of time'".

FACTS: The plaintiff, forty nine year-old Mary Bell, while a passenger on the defendants' train going from Armagh to Warrenpoint, sustained fright and nervous shock when the portion of the train in which she was seated was negligently allowed to roll down an incline at high speed. The plaintiff's mind became entirely deranged as a result of this jolt to her nervous system, and it was thought that her condition might result in paralysis.

Giving judgment for the plaintiff, and declining to interfere with the judgment of the learned trial judge, Palles,C.B. confirmed the award of £300 to the plaintiff for the great fright occasioned her by the occurrence, and for the mental trauma which ensued.

BYRNE and BELL were followed in the 1901 case of DULIEU v WHITE & SONS ([1901] 2 K.B. 669), in preference to COULTAS, despite the defendants' heavy reliance on the latter case. Damages were awarded to the plaintiff, who suffered nervous shock when a pairhorse van was negligently driven into her husband's public house by the defendants' servant. In his judgment, Kennedy J. asked - reiterating the words of Palles,C.B. in BELL - why the accompaniment of physical injury was essential to such a claim for damages:

 "It may be impossible, or at least difficult..." said Kennedy J. (@ p.677)  "..to detect the injury at the time in the living subject. I should not be surprised if the surgeon or the physiologist told us that nervous shock is or may be in itself an injurious affection of the physical organism."

Here at last was a breakthrough; the recognition by the courts of the possibility, at least, of a definable impact on the nervous system which has a profoundly injurious effect on the physical health and wellbeing of the sufferer.

By 1924, in HAMBROOK v STOKES BROTHERS ([1925] 1 K.B. 141), Atkin L.J., acknowledging the development of the legal effects of injury by shock over the previous thirty to forty years, said (@ p.153):

 "At one time the theory was held that damage at law could not be proved in respect of personal injuries, unless there was some injury which was variously called 'bodily' or 'physical', but which necessarily excluded an injury which was only 'mental'. There can be no doubt at the present day that this theory is wrong.....It may be due...in part to the law following belated psychology which falsely removed mental phenomena from the world of physical phenomena."

FACTS: Mrs.Hambrook was escorting her three children part of the way to school. Having left them at the corner of a street to continue their journey, she heard the sound of a lorry careering out of control down the street where her children were. The driverless lorry had been improperly braked at the top of the street,with the engine running.Mrs.Hambrook heard,but did not see,the lorry lurching to a violent stop against the wall of a house. She became increasingly distraught while endeavouring to glean some information from the crowd which had gathered: She learned that a little girl, about nine or ten, and possibly wearing spectacles, had been taken away injured. Her Mabel was ten. She wore spectacles. She had not arrived at the school with the others when her mother went along to investigate. Mrs.Hambrook immediately evinced signs of great mental disturbance. In an early stage of pregnancy, Mrs.Hambrook suffered a physical and mental decline. She died about six weeks after the incident, the child she had been carrying having predeceased her by about five weeks. The action was taken after her death by her husband, and the Court of Appeal, setting aside the judgment of Branson J. in the lower court, found for the plaintiff.

Lord Denning,M.R. stated clearly in 1970, in the case of HINZ v  BERRY ([1970] 1 ALL E R. 1074) that damages were recoverable for

 "any recognisable psychiatric illness caused by the breach of duty by the defendant."

 "Somehow or other.." said Lord Denning, "..the court has to draw a line between sorrow and grief for which damages are not recoverable; and nervous shock and psychiatric illness for which damages are recoverable."

FACTS: The plaintiff saw from the opposite side of the road, a tragic accident involving a car and the family camper van. Her husband was seriously injured and died shortly afterwards. Nearly all her children - four of her own and four foster children - were badly injured but recovered in time. The plaintiff was described as being of robust character, level-headed and very capable, and the trial judge found that if she had not seen the accident she would, although sorrowful, have stood up to the situation. However, the morbid depression, a recognisable psychiatric illness, which she had suffered since the accident, was caused by the shock of witnessing the accident. Among the symptoms exhibited by the plaintiff were - exhaustion, frequent suicidal ruminations, an inability to cope with her children and her life, and guilt on account of those feelings.The consultant psychiatrist, describing the plaintiff as "now..officially ill", continued:

 "There is no medical doubt at all that she is suffering from a Morbid Depression.......In other circumstances I would probably have brought her into Hospital, at least for a rest, but possibly for electrical treatment and it may come to that yet..."

The Court of Appeal, affirming the judgment of O'Connor J. in the lower court, found for the plaintiff.
 

By 1982, Lord Wilberforce, acknowledging the progress made in law, medicine and "common understanding", in the case of McLOUGHLIN v O'BRIAN ([1983] 1 A.C. 410), said (@ p.418):

 "Whatever is unknown about the mind-body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact,through the senses, of external events on the mind. There may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact."

FACTS: The plaintiff's husband and three of her children were involved in a road accident on 19 October, 1973, when their car was in collision with a lorry driven by the first defendant and owned by the second defendants. The plaintiff, being some two miles away, neither saw nor heard the impact, nor did she come to the scene of the accident. She was informed of the accident two hours later by a neighbour who brought her to the hospital to see her family. There the plaintiff met her husband, her son and her daughter, all with frightful injuries, and learned that her youngest daughter, not yet three, had already died. The plaintiff brought an action against the defendants for damages for personal injuries pleaded as shock and injury to health resulting in depression and change of personality affecting her abilities as a wife and mother. The House of Lords, reversing the decision of the Court of Appeal, held that the plaintiff was entitled to recover damages.
 

McLOUGHLIN v O'BRIAN was followed by Denham J. in the case of MULLALLY v BUS EIREANN ([1992] ILRM.722). A case the circumstances of which closely resembled those of McLOUGHLIN,the facts of MULLALLY v BUS EIREANN involved the overturning of a bus between Limerick and Midleton in April 1987. The plaintiff's husband and her three sons were very severely injured in the accident, and one son, Paul, aged five, succumbed to his injuries after eight months. The injured members of the plaintiff's family, all except Paul, recovered in time and were discharged from hospital, but the plaintiff was a changed person. From a happy, easy-going mother and wife she had become introverted, sometimes reacting violently, suffering flashbacks and disturbed sleep patterns. She was, in other words, suffering from post traumatic stress disorder, triggered by nervous shock, which condition was evidenced by the medical reports. Denham J., being satisfied that the plaintiff had fulfilled the five criteria of post traumatic stress disorder (set out ante), and finding for the purposes of this judgment that the condition did constitute a psychiatric illness, held that the plaintiff was entitled to recover damages as against the defendants.

The decisions in both McLOUGHLIN v O'BRIAN and MULLALLY v BUS EIREANN were followed and approved by the Supreme Court in its decision in KELLY v HENNESSY (cited ante),13.

The line between sorrow and grief, and psychiatric illness was drawn by the Stardust Victims Compensation Tribunal which was established to deal with claims for loss and personal injury attributable to the disaster at the Stardust nightclub in February 1981. THE STATE (JOHN KEEGAN and EOIN LYSAGHT) v THE STARDUST VICTIMS COMPENSATION TRIBUNAL ([1987] I.L.R.M. 202) came before the Supreme Court in 1986. The case involved an appeal against the order of the High Court refusing, inter alia, to make absolute a conditional order of Certiorari quashing the order of the Tribunal. The Tribunal had refused the prosecutor, John Keegan, compensation for nervous shock following on the death of two of his daughters in the Stardust fire tragedy, and the serious injury of a third daughter. As the courts of this jurisdiction had not hitherto been called upon to ponder the relevance of the McLOUGHLIN decision, the Tribunal, on a concession from the Attorney General, adopted for the most part the reasoning in that case, and in particular the five principles enunciated therein by Lord Wilberforce (@ pp.418/419). The prosecutor, in the opinion of the Tribunal, had suffered grief and sorrow, as opposed to nervous shock. He had not suffered a psychiatric illness and was therefore not entitled to claim damages for nervous shock pursuant to the compensation scheme.

The decision, said Blayney J. (@ p.206), was one which the Tribunal had to make on the basis of the medical reports, and having read those reports the learned Judge could not describe their decision as being in any way arbitrary or capricious.
The Supreme Court refused to interfere with the findings of the Tribunal.
 

In March 1996 a plaintiff recovered damages in the Dublin Circuit Court for what was, in the words of Lynch J. - "..now accepted as post traumatic stress syndrome." The plaintiff, a cashier at a service station, was attacked and slightly wounded during a robbery, with a syringe said to contain HIV-infected blood. Slight though the physical wound was, being merely a pin prick, the plaintiff had to have anti-tetanus and hepatitis-B injections, and had to undergo a HIV test with all the associated trauma, the results of which the plaintiff had to await some considerable time. The plaintiff exhibited, and continued to exhibit at the time of the trial, all the symptoms of post traumatic stress disorder.
 

CONCLUSIONS:

. A condition generalised in the past as "mental pain or anxiety" has, with the help of informed medical and legal opinion, been divided into two categories, one being "grief and sorrow", the other "nervous shock and psychiatric illness".

. The law has drawn the line between "grief and sorrow" for which damages are not recoverable, and "nervous shock and psychiatric illness" for which damages are recoverable.

. While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for nervous shock caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself.
 

. It has been held in the jurisdictions of Ireland, England, and Australia that psychiatric illness caused by what the plaintiff saw or heard in the aftermath of an accident - either at the scene or in a hospital -is sufficient to ground a claim for damages for post traumatic stress disorder.

. damages are recoverable for any recognisable psychiatric illness caused by breach of duty by a defendant.
 

. post traumatic stress disorder is a psychiatric illness which has been medically
 researched and defined; it is a recognisable psychiatric illness.
 

. as a recognised psychiatric illness, the condition has been demonstrated, in the course of the past 140 years, to be as worthy of compensation at law as any physical injury inflicted through negligence.
 

1. Lynch v Knight.[1861] 9 H.L.C. 577 @ 590.
2. Kelly v Hennessy [1995] 3 I.R. 253 @ 274
3. [1984] 155 C.L.R. 549
4. Donoghue v Stevenson [1932] A.C. 562
5. [1983] 1 A.C. 410
6. @ p.261
7. @ Code 309.1
8. [1992] I.L.R.M. 722
9. 26 L.R.Ir. 428 @ 441
10. 13 App.Cas. 222 @ 226
11. The Notting Hill (9 P.D.105)
12. [1895] 26 L.R.Ir. 428 @ 441
13. [1995] 3 I.R. 253
 

©  G. Kelly, 1997