POST TRAUMATIC STRESS DISORDER
in the light of the
IRISH SUPREME COURT DECISION
KELLY v HENNESSY  3 I.R.253
Second of a series of four papers
by GILLIAN KELLY B.L.
ESTABLISHMENT OF CAUSE AND NEGLIGENCE, AND FEAR FOR A THIRD PARTY
The 1995 Supreme Court decision in KELLY v HENNESSY set out at point (1.) of its judgment, five criteria which a plaintiff had to fulfil in order to recover damages for nervous shock which resulted in post traumatic stress disorder.
The first of this series of three papers explored the first criterion, which was that a plaintiff had to establish:
a) that he or she actually suffered a recognisable psychiatric illness;
Part 2 explores criteria b), c) and d), which stipulate that a plaintiff must further establish:
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;
The fifth criterion, which is:
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,
will be examined in Part 3.
b) The Injury must be Shock-Induced:
The plaintiff in KELLY v HENNESSY recovered damages for post traumatic stress disorder following on the aftermath of severe injuries to her husband and two daughters. The plaintiff, who was not at the scene of the accident, heard the news by telephone and immediately began to exhibit symptoms of nervous shock. She saw her family later in the hospital and there witnessed distressing scenes of a brain-damaged husband and daughter who would need constant care thereafter.
The defendant in the instant case, while accepting that the plaintiff was suffering from post traumatic stress disorder, contended that this had been occasioned not by the shock of the news and aftermath of the accident, but rather by the strain of caring for her family during the ensuing years. The Supreme Court, however, found that there had been credible evidence to support the trial judge's finding 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. Hamilton C.J. quoted McCarthy J. in HAY v O'GRADY () 1 I.R. 210 @ 217), as follows:
"If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority."
"It is clear from a consideration of the evidence in this case..(Hamilton C.J. continued) 1...there was credible testimony to support the findings of the learned trial judge that the plaintiff suffered nervous shock in the immediate aftermath of the accident which was due to the negligence of the defendant; that as a result thereof she suffered a post traumatic stress disorder and depression; that these conditions were induced by such nervous shock. Consequently, it is not open to this Court to interfere with such findings."
In HAY (or BOURHILL) v YOUNG ( 2 All E.R. 396) the appellant, Ms.Bourhill, had her action dismissed with costs by the House of Lords.
FACTS: Having alighted from a tramcar, Ms.Bourhill heard, but did not see, the impact of a fatal collision between a motorcycle and a car. All she witnessed was some blood on the roadway after the body had been removed. In her eighth month of pregnancy at the time, the appellant suffered a shock to her nervous system,and
gave birth, five weeks later, to a stillborn child. The Lord Ordinary, dismissing the action as irrelevant, later expressed the view that the pursuer (as she was then) had failed to prove that the death of her child in utero had resulted from the shock of the incident. The House of Lords upheld this view, Lord Wright raising the question (@ p.405) as to whether Ms.Bourhill's illness was not due to her peculiar susceptibility, as she was "eight months gone in pregnancy."
In DULIEU v WHITE & SONS ( 2 K.B. 669, D.C.),
point 5 of the statement of claim alleged that, following the shock sustained by the plaintiff, who was pregnant at the time and who, nine weeks later, gave birth to a premature baby,that:
"(5). in consequence of the shock sustained by the
plaintiff the said child was born an idiot."
Although judgment was given for the plaintiff with costs, the above point of claim was deemed untenable, and was, in fact, abandoned by counsel for the plaintiff.
The principle was enunciated in the Australian case of JAENSCH v COFFEY ( 155 C.L.R.549) by Brennan J, and reiterated by the Supreme Court in KELLY v HENNESSY,as follows, and the passage clearly articulates the law, as it stands, in this area:
"A plaintiff may recover only if the psychiatric illness is the result of physical injury inflicted on him by the defendant or if it is induced by shock. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant's carelessness."
c) That the Nervous Shock was Caused by the Defendant's Act or Omission:
The defendants in KELLY v HENNESSY contended on appeal that it was not the events of the night of the accident which caused the plaintiff's psychiatric illness, but rather the strain of caring for her family over the ensuing months and years, but Hamilton C.J. stated in his judgment2:
"There is no doubt having regard to the findings of the learned trial judge but the plaintiff herein has established that the nervous shock suffered by her was due to the defendant's negligence. She has clearly established that the circumstances of the accident and the appalling injuries suffered therein by her husband and two daughters caused or materially contributed to the nervous shock."
Denham J. was satisfied, in MULLALLY v BUS EIREANN,3 that:
"There was no other cause of the scenes in the hospital or the injuries to the children and the husband other than the defendant's negligence."
Although negligence was admitted by the defendants in HAMBROOK v STOKES BROTHERS,4 an issue was raised by the defence at the trial before Branson J. as to whether Mrs. Hambrook's death and the death of her child in utero were not entirely due to one or other of two drives in a motor charabanc which she had taken to the Derby on June 6 and to Ascot on June 21, about three weeks before her death. It was found, however,that there was "...ample evidence upon which the jury might have found that death was not solely so caused."
In HAY (or BOURHILL) v YOUNG,5 though it was acknowledged that the appellant had sustained a shock to her nervous system, and although the deceased was admittedly negligent as against the driver of the car, it was held that there was no negligence on the part of the deceased towards the appellant, as he could not reasonably have expected that the noise of his accident some 50 feet away, could in any way affect the appellant. In the instant case, although the nervous shock was acknowledged, and though it was found to have been caused by the defendant's act or omission, Ms.Bourhill had "..totally failed to bring herself into any relationship to the cyclist which infers a duty of care in driving owed by him towards her".
In the majority of cases cited, negligence was admitted, the main issues for the courts to decide being - once the psychiatric illness and its cause had been established - those of reasonable foreseeability and duty of care. Proving that the nervous shock was caused by the defendant's act or omission has not, therefore, been the stumbling block of any decisions to date, and so far, submissions to the contrary, although carefully considered by the courts, do not appear to have succeeded, for the most part, in materially influencing the key decisions in this area.
d) The Nervous Shock Sustained must be by reason of Actual or Apprehended Physical Injury to the Plaintiff or to a Person Other than the Plaintiff:
From the first acknowledgement of nervous shock in 1884, the criterion to be fulfilled by a plaintiff was that of actual or apprehended physical injury to him or herself. In 1924, however, in the case of HAMBROOK v STOKES BROTHERS ( 1 K.B. 141, C.A.), the Court of Appeal, reversing the decision of Branson J. in the lower court, found in favour of the plaintiff. The significance of the Hambrook decision lay in the fact that Mrs.Hambrook was at no time in fear for her own safety, but rather for the safety of her three children.
Mrs. Hambrook was out of sight, but not out of earshot, of an accident involving a badly braked, driverless lorry which rolled down a street injuring one of her children. The facts are set out in Part 1 of this series.
At the trial, Branson J., following a dictum of Kennedy J. in DULIEU v WHITE & SONS ( 2 K.B. 669, D.C.) directed the jury that if the nervous shock (which ultimately resulted in Mrs.Hambrook's death) was caused by fear for her children's safety rather than by fear for her own, then the plaintiff, (her husband,who took the action after Mrs.Hambrook's death),could not recover. The jury duly found in favour of the defendants. Setting aside the judgment, and disapproving the said dictum of Kennedy J. as having been "laid down in quite general terms" and adding that it could not be accepted as good law applicable in every case, the Court of Appeal found for the plaintiff, Bankes L.J. posing the question (@ p.151):
"Can any real distinction be drawn from the point of view of what the defendant ought to have anticipated and what,therefore, his duty was, between [the case of a woman mentally shocked through fear of bodily injury to herself] and the case of a woman whose fear is for her child, and not for herself ?".
Since the Hambrook case, it has been accepted that a claim will lie in damages for nervous shock sustained by reason of actual or apprehended physical injury not only to the plaintiff, but equally to a person other than the plaintiff. A study of the main authorities from and including Hambrook, show that such latter category predominates. In KELLY v HENNESSY, Hamilton C.J. expressed himself satisfied that this view had been clearly expressed by Deane J. in JAENSCH v COFFEY as being the present state of the law.6
The courts have not hitherto been greatly burdened with the concept of closeness of a plaintiff to siblings or to extended family, 7 nevertheless, it must be anticipated as the logical progression of the post-Hambrook decisions. The broad definition of "a person other than the plaintiff" is technically capable of encompassing anybody from family, relative or friend, to a bystander who may be a complete stranger.8 One of the plaintiffs in JONES v WRIGHT ( 3 All E R.88), who lost both his brothers in the Hillsborough disaster, was held by the Court of Appeal not to be entitled to succeed in his claim, as there was no evidence of the closeness of the tie between him and his brothers.9
The requirement of such rebuttable evidence by the courts, the corollary of which would appear to infer unhelpful and intrusive examination of a plaintiff's past, does not appear to be an ideal method of establishing a duty of care. But is there any alternative to this method, short of drawing a very definite line of proximity of relationship beyond which a plaintiff cannot succeed in a claim for nervous shock - the implementation, in other words, of a public policy on the matter ?
- The role, if any, of Public Policy:
The Public Policy issue was first discussed as such by the Court of Appeal when it upheld the decision of Boreham J. in McLOUGHLIN v O'BRIAN 10 on considerations of policy, as opposed to lack of reasonable foreseeability as originally held by Boreham J.in the lower court. The Court of Appeal held that as a matter of public policy, a duty of care was not to be imposed on a negligent defendant beyond that owed to persons in close proximity, both in time and place, to an accident, even though the injuries received by the plaintiff might be reasonably foreseeable as being a consequence of the defendant's negligence, or because the duty of care owed by a driver of a motor vehicle was limited to persons on or near the road. However, on appeal by the plaintiff, the House of Lords held (Lord Edmund-Davies not concurring), dismissing the public policy argument, that the sole test of liability in this area was one of reasonable foreseeability without any legal limitation in terms of space, time, distance, nature of injuries or relationship of plaintiff to victim (although those were factors to be considered). Further, (per Lord Bridge), there were no policy considerations sufficient to justify limiting the liability of negligent tortfeasors by some narrower criterion than that of reasonable foreseeability. If there were (per Lord Scarman), the policy issue where to draw the line was not justiciable but a matter for legislation.
The role of public policy was discounted by Denham J. in MULLALLY v BUS EIREANN,11 who considered that there was no policy in Irish law opposed to a finding of nervous shock. Neither was there any bar in law, or under the Constitution,to such a finding. The learned judge added that if it caused commercial concern, then that was a matter for another place, where a policy could be established in the law.
The public policy argument was equally discounted by the Supreme Court in KELLY v HENNESSY,12 Hamilton C.J. stating:
"There is no public policy that the plaintiff's claim, if substantiated, should be excluded."
A public policy, limiting the duty of care of a negligent tortfeasor who causes injury through nervous shock, would therefore appear to be a) nonexistent, and b) a matter for the Oireachtas and not for the courts.13
In the words of Lord Bridge:
"[I]n so far as policy considerations can be seen to have influenced any of the decisions, they appear to have sprung from the fear that to cross the chosen line would be to open the floodgates to claims without limit and largely without merit."14
. In order for a plaintiff to recover damages, the injury must be shock-induced (or induced by physical injury inflicted on him by the defendant). Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant's carelessness.
. A plaintiff must establish that the nervous shock was caused by the defendant's act or omission. In the majority of cases to date, this has not proved to be a major stumbling block, and although the point was contested by the defendants in KELLY v HENNESSY, the Supreme Court was satisfied that, on the evidence, the nervous shock suffered by the plaintiff was clearly the result of the defendant's negligence.
. The present state of the law is that a claim will lie in damages for nervous shock sustained by reason of actual or apprehended physical injury, not only to the plaintiff, but equally to a person other than the plaintiff; There is no public policy in this jurisdiction which limits the duty of care of a negligent tortfeasor who causes injury through nervous shock.
1. @ p.264
2. @ p.259
3.  I.L.R.M.722 @ 731
4.  1 K.B. 141,C.A.
5.  2 All E.R. 396
6.  155 C.L.R. 549. (& cf. generally Phelan Holdings Ltd. v Poe Kelly Hogan.
H.Ct. Barron J. 5.10.96 @ pp.26/27)
7. but cf. Jones v Wright  3 All E.R. 88
8. not to be confused with rescuers, who are in a different category, and the subject of a further work. For rescuers, cf. generally and compare McFarlane v E E Caledonia Ltd. 2 All E.R. 1, and Dooley v Cammell Laird & Co.Ltd. 1 Lloyd's Rep. 271.
9. cf. judgment of Nolan L. J. @ pp.120/121
10.  1 All E.R. 809
11. @ pp.730/731
12. cf. Hamilton C.J. @ pp.262/263 and Denham J. @ pp. 272/274
13. cf. and compare decision in HMW v Ireland,the A.G. and the Government of Ireland, H.Ct. Costello P. 11.4.97
14.  1 A.C. 410 @ 433/434
© G. Kelly, 1997