The Supreme Court, in its decision in KELLY v HENNESSY, laid down five criteria to be fulfilled by a plaintiff in order to recover damages for nervous shock leading to a post traumatic stress disorder.

A plaintiff, the Supreme Court held, 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.

Having examined criterion a) above in the first paper of this series, and criteria b), c) and d) in the second, it remains to explore in this third and final paper, the origins and implications of:

 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.

The plaintiff in KELLY v HENNESSY was held to be entitled to recover damages for post traumatic stress disorder suffered as a result of the severe injuries inflicted on her husband and two daughters following a road accident. The facts are set out in detail in Part 1 of this series of articles, however, it is relevant for the purposes of this section on duty of care, that the plaintiff was not at the scene of the accident,but was informed of the accident by telephone, and observed the injuries to her family in the hospital some time later. The plaintiff exhibited immediate signs of nervous shock on hearing of the accident,and was severely traumatised thereafter. She continued to suffer a serious depression, and both the High Court and Supreme Court were satisfied on the evidence that Mrs.Kelly had suffered a post traumatic stress disorder, and was thereby entitled to recover, as against the defendant, damages for her condition.
 

 i) present at the scene of the accident:

As far back as BELL v THE GREAT NORTHERN RAILWAY COMPANY OF IRELAND, 1 a duty of care not to cause injury by shock was acknowledged by the Irish courts, and articulated by Murphy J. when he said:

 "The negligent management by the defendants of the carriage in which [the plaintiff] was seated was admittedly the cause of the injuries she sustained. It appears to me immaterial whether the injuries may be called nervous shock, brain disturbance,mental shock or bodily injury. The only questions to be considered,in my opinion,are:

 Was the health or capacity of the plaintiff for the discharge of her duties and enjoyment of life affected by what occurred to her whilst in the carriage?

next,

Was this caused by the negligence of the defendants?"

These questions were answered in the affirmative by the jury.

This said, no exploration of the common law duty of care can be embarked upon without the involvement of Lord Atkin, and it is notable that Lord Atkin himself, who, eight years on, was to formulate the indispensable "Neighbour Principle", was a member of the Court of Appeal during the hearing of HAMBROOK v STOKES BROTHERS, 2 and was instrumental in that court's decision to reverse the judgment of Branson J. in the lower court, and hold that the plaintiff was entitled to recover. His Lordship said (@ p.157):

 "No doubt the particular injury was not contemplated by the defendants, but it is plain from IN RE POLEMIS AND FURNESS,WITHY & CO.3 that this is immaterial. If the act would or might probably cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect, is immaterial,so long as the damage is in fact directly traceable to the negligent act.."

The concept of duty of care having been well established at law and underpinned since DONOGHUE v STEVENSON, ([1932] A.C. 562), we are here concerned with the duty not to cause a reasonably foreseeable injury through shock, as opposed to personal injury in general.

When McLOUGHLIN v O'BRIAN, ([1983] 1 A.C. 410), reached the House of Lords in 1982, only one previous case of this nature had fallen to be decided by their Lordships; that of HAY (or BOURHILL) v YOUNG,4 the facts of which are set out in Part 2, and although Bourhill failed on its facts, and involved the question of liability - that is whether or not negligence in law was established - rather than remoteness of damage, a clear recognition was given by the House of Lords, in principle, to this particular area of duty of care. In the words of Lord Macmillan (@ p.402):

 "..it is now well recognised that an action will lie for injury by shock sustained through the medium of the eye or the ear without direct contact."

The pursuer in BOURHILL v YOUNG saw nothing of the fatal accident which gave rise to her claim for nervous shock. She heard the impact of the motorcycle and the car, and saw the blood on the pavement after the body of the deceased motorcyclist had been removed.No duty of care was found to be owed to Ms.Bourhill by the  motorcyclist, since he could not be held to have reasonably foreseen the likelihood that the pursuer/ appellant, placed as she was,could be affected by his negligent act. It may or may not be of significance that Bourhill reached the House of Lords during the second world war, when soldiers were returning from the front having witnessed carnage on a far greater scale than did the appellant, and many suffering from neurasthenia (or shell shock), for which treatment was available certainly, but not compensation by the courts, and mere fright was, particularly at that juncture, considered to be "a somewhat ignoble emotion".5
The duty of care not to cause injury by shock is, therefore, a far wider dragnet, and a more onerous one, than the duty of care not to cause personal injury in general. Professor A.L.Goodhart has illustrated this by reference to the hypothetical "Woman at the Window" who witnesses an accident on the street below:

 "The driver obviously cannot foresee that the woman at the window will receive a physical injury, but it does not follow from this that he cannot foresee that she will receive a shock. As her cause of action is based on shock it is only foresight of shock which is relevant."6

 ii) present at the immediate aftermath of the accident:

The decision in McLOUGHLIN v O'BRIAN 7 had the effect of broadening the scope of the duty of care through the introduction of the "immediate aftermath" doctrine. The facts are set out in Part 1 of this series, and also in the judgment of Lord Wilberforce together with an in-depth analysis of the law, at pp.416 - 423. The plaintiff, following a road accident in which her husband and children - one of whom died - were severely injured, was held by the House of Lords to be entitled to recover damages as against the defendants, for the consequent psychiatric illness which she suffered on observing the injured members of her family, not at the scene of the accident, but some time later at the hospital.

Their Lordships, reversing the decision of the Court of Appeal,

HELD: allowing the plaintiff's appeal, that the nervous shock assumed to have been suffered by the plaintiff had been the reasonably foreseeable result of the injuries to her family caused by the defendants' negligence. Lord Wilberforce said (@ p.419):

 "Can it make any difference that she comes upon [her family] in an ambulance, or, as here, in a nearby hospital, when, as the evidence shows, they were in the same condition, covered with oil and mud, and distraught with pain ?".

It would be excessive and inaccurate to term the above dictum of Lord Wilberforce "a giant leap into the unknown". It was, however, something of a legal "leap of faith" and one which His Lordship acknowledged was "...upon the margin of what the process of logical progression would allow."8  It was embarked upon, said his Lordship, in the interests of justice, and unless the law were to draw an arbitrary line at the point of direct sight and sound,this was a doctrine that, in the instant case, ought to be accepted. Their Lordships concurring, the decision of the Court of Appeal was reversed, and the plaintiff was held to be entitled to succeed in her claim.

It was not until 1991 that the House of Lords was called upon to consider the question of proximity of relationship of plaintiff to victim or potential victim of negligence. The case was ALCOCK v CHIEF CONSTABLE of the SOUTH YORKSHIRE POLICE ( [1991] 4 All E R.907), and was brought as a result of the disaster at Hillsborough Stadium in Sheffield in April 1989, in which 95 spectators were killed and a further 400 injured due to a crush of fans at a football match, when part of the stadium collapsed. The tragedy was caused by the defendants' negligence in the admission of numbers beyond the capacity, both of the grounds and of police control. The Alcock decision merely confirmed the decision of the Court of Appeal, given six months earlier sub nom JONES and Others v WRIGHT ([1991] 3 All E R.88).

FACTS: The plaintiffs were fifteen people who, it was assumed for the purposes of the decision, had suffered psychiatric illness from nervous shock sustained as a result of seeing or hearing news of the disaster. All the plaintiffs had relatives or friends at the match. Of these, twelve plaintiffs had lost relatives or friends, two had relatives or friends injured, and one plaintiff's relative was uninjured. As regards physical proximity in time and space to the disaster, only four of the fifteen plaintiffs were present at the match, and the others either saw live television coverage, later television broadcasts, or heard of the disaster on radio or by telephone. The relationships of the plaintiffs to the victims were variously those of parent, spouse, brother, sister, brother-in-law, grandparent, uncle, fiance, and close friend. Two of the plaintiffs identified the bodies of their relatives, in one case a son and in the other a brother-in-law. The question whether the fifteen plaintiffs were entitled in law to recover damages for nervous shock against the defendants had been tried as a preliminary issue by Hidden J. sitting in the Queen's Bench Division at Liverpool (Jones v Wright, [1991] 1 All E R.353). Ten plaintiffs were initially held by Hidden J. to be entitled to sue for damages for nervous shock on account of their proximity of relationship (that of parent, spouse, brother or sister) to the victims, or in time and space (having been eye-witnesses or live television witnesses of the disaster). The remaining six plaintiffs were held not to be entitled to sue, either by reason of more remote relationships to the victims, or of insufficient proximity in time and space to the disaster, having heard of it through telephone conversations or recorded media broadcasts. The defendants appealed the decision in the case of nine of the ten successful plaintiffs, and the six unsuccessful plaintiffs cross-appealed. (JONES v WRIGHT [1991] 3 All E R. 88).

Such was the situation in July 1990.

The ten months between July 1990 and May 1991 were to be something of a volte face in the area of liability for damages for nervous shock, and it is important for the purposes of clarification to study the relevant decisions chronologically, and two decisions of the Queen's Bench in particular which came in the wake of Hidden J's decision above, and before the almost total reversal thereof by the Court of Appeal in May 1991.
The two decisions to which I refer are, HEVICAN v RUANE ([1991] 3 All E R.65) and RAVENSCROFT v REDERIAKTIEBØLAGET TRANSATLANTIC ([1991] 3 All E R.73).
 

 iii) the chain of causation

The plaintiff in HEVICAN v RUANE, one James Hevican, was able to recover damages for "continuing reactive depression" following the loss of his 14 year-old son in a school minibus accident. The son's school friend cycled the short distance to the plaintiff's home with the news of the disaster. The plaintiff received confirmation of his son's death at the nearby police station, and subsequently saw his body, not disfigured in any way, at the hospital three hours later. Although unlike the facts of McLOUGHLIN v O'BRIAN, the plaintiff never came within the "immediate aftermath" doctrine, it was held by Mantell J. that each link in the chain of causation, from the driver's negligence, to the news of the death of the plaintiff's son being communicated to him causing him to suffer nervous shock, was foreseeable, and therefore gave rise to liability under the general principles of negligence. Mantell J. said (@ p.66):

 "The elements which have come together to produce his illness, though in what proportions no one can say, were the news of his son's death, the sight of his body as it lay in the hospital and a continuing sense of loss."

The learned Judge accepted, as did the consultant psychiatrist, that the components of acute emotional trauma could include the death of a son, the confirmation of that news, the sight of the body of the son and a continuing feeling of loss."

 "The facts of this case..(Mantell J. continued @ p.68).. are clearly further removed from the scene of the accident than those assumed in McLoughlin v O'Brian and it would be stretching language beyond all bounds to say that the plaintiff's condition is as a result of coming upon the accident's immediate aftermath. His trauma was the realisation coming to him in stages that his son was dead, in other words this was shock brought about from communication by others as described by Lord Wilberforce in 1982 for which hitherto compensation has never been awarded and as remains the position, I believe, in 1990."9

Adverting to in brief, and questioning in part, the judgment of Hidden J. in JONES v WRIGHT 10 Mantell J. cited other authorities in which it had been accepted that, provided each link in the chain of causation, which might include the act of another, is itself foreseeable as likely to happen, a plaintiff will not be defeated simply because the harm he suffers is separated from the negligent act by time and distance.11

Mantell J. turned for guidance to the speech of Lord Bridge in McLOUGHLIN v O'BRIAN:12

 "...this is an area of the law of negligence where we should resist the temptation to try yet once more to freeze the law in a rigid posture which would deny justice to some who, in the application of the classic principles of negligence derived from DONOGHUE v STEVENSON, ought to succeed."

The learned Judge was also guided by Tobriner J. in DILLON v LEGG ([1968] 68 Cal.2 d.728, Cal.SC.) when he said that the defendants' duty must depend on reasonable foreseeability and "must necessarily be adjudicated only upon a case-by-case basis..".

Some three months after the decision in HEVICAN v RUANE came that of RAVENSCROFT v REDERIAKTIEBØLAGET TRANSATLANTIC,13 in which the plaintiff's son was crushed to death by a shuttle wagon while working on the cargo deck of the defendants' vessel. The plaintiff was not at the scene of the accident, nor did she witness the immediate aftermath thereof, the news having been communicated to her by her husband at the hospital. Neither did she see her son's body. Following the dictum of Lord Bridge in McLOUGHLIN v O'BRIAN, Ward J. held that the chain of causation had been established, and although Mrs. Ravenscroft did not see her son's body (having been spared the ordeal by her husband), her psychiatric illness was undoubtedly contributed to by "her imagination of the agonies of mind and body" in which her son died, rather than by direct perception of the event. Holding the plaintiff's psychiatric illness to have been reasonably foreseeable notwithstanding her distance in time and space from the events and the aftermath thereof, and that accordingly the damage was not too remote, Ward J. gave judgment for the plaintiff.

It is interesting to note that the only portion of Hidden J's judgment in JONES v WRIGHT 14 adverted to by the judges in either Hevican or Ravenscroft, was the non-inclusion of Catherine Jones - who had lost a brother at Hillsborough - in the category of plaintiffs entitled to sue, because she had come by the news later, by means of an accumulation of recorded television and radio broadcasts and telephone conversations. Both Mantell J. and Ward J. adopted the chain of causation argument in preference to Hidden J's finding of lack of proximity in time and space. And although not bound by Hidden J's decision, Ward J. was keenly aware that he should not lightly depart from it.  Alastair Mullis describes the decisions in Hevican and Ravenscroft as having pushed the "high water mark" left by their Lordships in McLoughlin v O'Brian further up the beach. He also deems it unlikely that either case would survive on appeal.15

Five weeks after the decision in Ravenscroft, the Court of Appeal delivered its judgment in JONES v WRIGHT,16 and Parker L.J. finally cried "halt". (Stocker and Nolan L. JJ concurring). Observing a need to slow down the march upon which - in the opinion of their Lordships - the law had embarked towards subjection of defendants to "liability in an indeterminate amount for an indeterminate time to an indeterminate class",17 and Parker L.J. pointing out that the decisions in HEVICAN and RAVENSCROFT had "..gone further in extending the permissible ambit of a claim for nervous shock than has any previous case either in this court of in their Lordship's house",18 the Court of Appeal, faced now with the prospect of global foreseeability and unfettered duty of care,

HELD:

1) the category of those entitled to recover damages for nervous shock as a result of witnessing injury to another caused by the defendant's negligence was normally limited to those who fell within the relationship of spouse or parent of the victim and relationships outside that category were normally excluded, on the presumption that the love and affection normally to be expected in the former relationship was so powerful that psychiatric injury through shock was foreseeable in a parent or spouse of ordinary fortitude, whereas those whose relationship was more remote could be expected to withstand the shock without injury but (Parker L J dissenting), in exceptional cases the category of those entitled to recover could include a relative or (per Nolan L J) a friend of the victim, but only if on close scrutiny it appeared that the relative or friend had at the time of the negligent act a relationship of loving care and affection for the victim similar to that of a normal parent or spouse of the victim such that the relative or friend was to be treated as being in the same position vis-a-vis the victim as a parent or spouse of the victim. However, the presumption of love and affection was rebuttable by evidence that in the case of a particular parent or spouse or other relative or friend the normal tie of closeness based on love and affection was absent. (dictum of Lord Wilberforce in McLOUGHLIN v O'BRIAN, [1982] 2 All E R. 298 @ 304 applied).

2) since it was unlikely that any television or radio broadcast would do any more than communicate the fact of the accident or disaster, it was not to be equated with the plaintiff being within sight or hearing of the event or its immediate aftermath and therefore shock sustained by reason of the broadcast did not suffice to found a claim for damages for nervous shock, because such a broadcast was likely to have been an edited version of what was occurring depending on the pictures the camera operators and the producer of the broadcast chose to transmit and also the pictures would be accompanied by an edited commentary. In those circumstances, communication of the disaster to the viewer was brought about by the intervention of third parties and the viewer was not so closely and directly connected with the defendant's negligence that the defendant ought to have had the viewer of the television broadcast in mind. Furthermore (per Nolan L J) the basis of the cause of action was shock resulting from the direct perception of an actual or threatened physical impact and on the facts the element of an immediate and horrifying impact on the plaintiff television viewers had not been established as being reasonably foreseeable, or as having happened. Accordingly, the effect on the plaintiffs who watched the live television broadcasts of the disaster was too remote and failed to satisfy the test of proximity in time and space to the scene of the disaster to found a claim for damages for nervous shock. It followed that those plaintiffs whose claims were based on shock sustained by seeing the simultaneous television broadcast of scenes of the disaster or on seeing or hearing later recorded television or radio news items of it could not succeed in their claim.

3) (Per Parker and Nolan L.JJ), the two plaintiffs who had identified their relative's body at the mortuary soon after the disaster could not succeed because, in all the circumstances, the process of identification could not be regarded as part of the immediate aftermath of the disaster so as to bring shock sustained from identifying the bodies within the defendant's duty of care (McLOUGHLIN v O'BRIAN [1982] 2 All E R.298 distinguished)

4) accordingly, as regarded the nine successful plaintiffs, the eight who had seen scenes of the disaster live on television were not19 entitled to succeed in their claims for damages, and neither was the remaining successful plaintiff, who had been at the match, since he was the brother of victims and there was no evidence of the closeness of the tie between him and his brothers. The defendant's appeal in respect of the successful plaintiffs would therefore be allowed, and the cross-appeals of the six unsuccessful plaintiffs whose relationship to the victims had been more remote than that of parent or spouse,and as to whom there was no evidence to establish the closeness of the tie between them and the victim, would be dismissed.
 (per Nolan L J), the expression "nervous shock", as used in the decided cases, connotes a reaction to an immediate and horrifying impact and although no doubt the kinds of psychiatric illness to which nervous shock may give rise could equally be brought about by an accumulation of more gradual assaults upon the nervous system, the law as it stands does not appear to provide for the latter category.

 Decision of Hidden J.([1991] 1 All E R.353) reversed in part.
 

The above decision of the Court of Appeal was affirmed by the House of Lords five months later sub nom  ALCOCK AND OTHERS v CHIEF CONSTABLE OF THE SOUTH YORKSHIRE POLICE ([1991] 4 All E R.907).

  " -  a decision which at least appears to have achieved something that King Canute could not - the House of Lords pushed back the encroaching tide almost to its 1982 resting place." (A.Mullis.cf.footnote 15)
 

In the jurisdiction of the Irish courts, 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 decision in McLOUGHLIN v O'BRIAN had not as yet fallen to be considered by the courts of this jurisdiction. The Hillsborough disaster would not happen for another eighteen months. The KEEGAN case was 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 said order of the Tribunal had refused the prosecutor, John Keegan, compensation for nervous shock following on the death of two of his daughters in the Stardust nightclub fire tragedy of February 1981, and the serious injury of a third daughter.
The Tribunal, on a concession from the Attorney General, adopted for the most part the reasoning in McLOUGHLIN v O'BRIAN  and in particular the five principles enunciated therein by Lord Wilberforce.20 The prosecutor, in the opinion of the Tribunal, having suffered "grief and sorrow" as opposed to nervous shock, was held not to be entitled to compensation for nervous shock, and the Supreme Court refused to interfere with the Tribunal's findings. The prosecutor's wife, Mrs. Christine Keegan, had been awarded £50,000 for nervous shock, and the various damages awarded to the Keegan family, which included, inter alia, damages for mental distress and loss of earnings, totalled £170,800 inclusive of Mrs.Keegan's award.

 "This in my view.." said Griffin J. (@ p.221) "..is not indicative of a tribunal which acted unfairly or irrationally."

MAUREEN MULLALLY v BUS EIREANN and ANOTHER ([1992] I L R M.722) came before Denham J. in the High Court in June 1991. The decision of the Court of Appeal in JONES v WRIGHT had not been reported as yet, neither had those in either HEVICAN or RAVENSCROFT. The facts of the MULLALLY case, however, bore far more resemblance to those of McLOUGHLIN v O'BRIAN, and Denham J., being guided more by Lord Bridge than Lord Wilberforce therein, relied on the House of Lords decision in the McLOUGHLIN case.

FACTS: A bus overturned between Limerick and Midleton in April of 1987, seriously injuring the plaintiff's husband and her three sons, one of whom, Paul, aged five, succumbed to his injuries after eight months. The plaintiff was, at the time of the accident, in Thurles, some forty miles away. She received news of the accident by telephone, whereupon she travelled to Limerick city where her injured family had been brought to two different hospitals. Two sons were in Limerick Regional Hospital, one of whom the plaintiff failed to recognise until he called out to her, the other with such severe head injuries that he only lived until the following December. The plaintiff then proceeded to Barrington's Hospital where she found her husband and another son badly injured, though to a somewhat lesser degree than those in the previous hospital. The injured members of her 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 fact, suffering from post traumatic stress disorder, triggered by nervous shock, which condition was evidenced by the medical reports.

An important difference between the situations of the plaintiffs in McLOUGHLIN and MULLALLY was not so much that Mrs.Mullally was further removed from the scene of the accident, but rather that there had been time to clean up her injured family and administer some basic medical treatment. This fact alone would have immediately removed Mrs.Mullally from the "immediate aftermath" doctrine of Lord Wilberforce enunciated in the McLOUGHLIN case.21 It was, nevertheless, accepted in both jurisdictions that the plaintiffs had suffered, and suffered greatly, and in the interests of justice, must be compensated. But the interests of justice had to be given a form; a conduit whereby justice could be done without adherence to strict rules, and whereby damages could be awarded on a case-by-case basis to those plaintiffs who merited them. And even on a case-by-case basis some structure had to be introduced - some guidelines established. This, Lord Wilberforce effected in McLOUGHLIN v O'BRIAN by stretching the "immediate aftermath" category to the hospital, and Lord Bridge,22 by adopting the "chain of causation" argument which was followed by Denham J. in MULLALLY v BUS EIREANN, where she  found that the causal link had been established, and that the plaintiff's illness was a reasonably foreseeable consequence of the defendants' negligence.

Denham J. said (@ p.731):

 "It appears to me that the causal link is there; that the illness was reasonably foreseeable. The facts of this case clearly establish, an horrific situation for the plaintiff from the time of learning of the accident, through her journey to the hospital, to the appalling sights at the hospital, the terrifying sights of her sons Paul and Francis, and the fact of her apparently dying husband. All these events were caused by the accident caused by the defendants."

The learned Judge, stating the law as being that a person who suffers nervous shock which results in psychiatric illness may succeed against a person who caused that nervous shock (BELL v GREAT NORTHERN RAILWAY COMPANY OF IRELAND [1896] 26 L R Ir.428, and BYRNE v GREAT SOUTHERN AND WESTERN RAILWAY COMPANY OF IRELAND [1884] cited at 26 L R Ir.428. considered), gave judgment for the plaintiff.23

MULLALLY v BUS EIREANN was considered by the Supreme Court four years later, in the case of KELLY v HENNESSY.24 The decision of the House of Lords in McLOUGHLIN v O'BRIAN 25 and that of the High Court of Australia in JAENSCH v COFFEY ([1984] 155 C.L.R.549) were also relied upon and approved by the Supreme Court in the KELLY decision. Although the issue of foreseeablilty was not in question in the Supreme Court, it was discussed as being relevant in the context of determining the nature of the duty owed by the defendant to the plaintiff.26 Lord Bridge had stated in McLOUGHLIN v O'BRIAN (@ p.431 et seq.) that, having established that he is suffering from a positive psychiatric illness..

 "A plaintiff must then establish the necessary chain of causation in fact between his psychiatric illness and the death or injury of one or more third parties negligently caused by the defendant...But when causation in fact is in issue, it must no doubt be determined by the judge on the basis of the evidence of psychiatrists. Then, here comes the all-important question. Given the fact of the plaintiff's psychiatric illness caused by the defendant's negligence in killing or physically injuring another, was the chain of causation from the one event to the other, considered ex post facto in the light of all that has happened, 'reasonably foreseeable' by the 'reasonable man'?"

It was stated by Brennan J. in JAENSCH v COFFEY, that:

 "It is not necessary that the precise events leading to the administration of the shock should be foreseeable. It is sufficient that shock and psychiatric illness induced by it are reasonably foreseeable.....It is not necessary for a plaintiff to prove that a reasonable man in the defendant's position could foresee that any particular psychiatric illness might be caused by his conduct: it suffices that he could have foreseen that his conduct might cause some recognised psychiatric illness by shock." 27

 "The plaintiff in this case - said Hamilton C.J. in KELLY v HENNESSY @ p.260 - has established a chain of causation from the defendant's negligence in causing serious personal injuries, with appalling consequences, to her husband and at least one of her daughters to her nervous shock and shock-induced psychiatric illness."
 

The defendant in JAENSCH v COFFEY was held to owe a duty of care to the plaintiff, a duty of which he had been in breach. Denham J. in her judgment in KELLY v HENNESSY was guided by Gibbs (then C.J.)28 when he said:

 "In the present case there was a very close relationship, both legal and actual, between the respondent and her husband. She was notified of the accident, and went to the hospital, as soon as practicable on the evening when it occurred. She 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;"

Denham J. thus pronounced herself satisfied, in her judgment in KELLY v HENNESSY (@ p.274) 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. In reaching these determinations it is necessary to review the accident and immediate aftermath in an ex post facto way to test the situation."
 

It can be said in conclusion that the concept of Lord Wilberforce's "immediate aftermath" doctrine is still relevant, although the underlying reasoning therefor has been gradually eroded in favour of the "chain of causation" argument, Lord Atkin's "neighbour" principle, and the "secondary victim" concept. These concepts have, as their common goal, the interests of justice, and for the purposes of conclusion I defer, for reasons of clarity and erudition, to the following words of Lord Wilberforce:29

 "My Lords, I believe that these indications, imperfectly sketched, and certainly to be applied with common sense to individual situations in their entirety, represent either the existing law, or the existing law with only such circumstantial extension as the common law process may legitimately make. They do not introduce a new principle. Nor do I see any reason why the law should retreat behind the lines already drawn."
 

CONCLUSION.

.It is well over a century since Lord Wensleydale described this condition as "something which the law cannot value and does not pretend to redress".30 Since then, both medical research and law have increasingly acknowledged the condition of post traumatic stress disorder. It has been demonstrated to be a recognisable psychiatric illness for which damages are recoverable at law.

.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).31  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, both the High Court and the Supreme Court were satisfied on the evidence that 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.
 

.As regards the duty of care not to cause personal injury by shock as opposed to personal injury in general, it is not necessary that the precise events leading to the administration of the shock should be foreseeable. The test for liability for shock is foreseeability of shock. The defendant's duty must depend on reasonable foreseeability and must necessarily be adjudicated on a case-by-case basis.
 

A psychiatric disorder which, in 1861, the law could not value, has been valued, and a condition which the law did not pretend to redress, has been increasingly understood and redressed by the law. For future cases in this area of personal injuries, the courts have the advantage of the precedents already laid down, of informed and enlightened medical and legal opinion born of ongoing research and precedent, and of the good sense of the judges, all of which have come together to constitute the present law regarding a vast and enigmatic subject.

 "..if asked where the thing is to stop, I should answer, in an adaptation of the language of Lord Wright and Stephenson L.J.  'Where in the particular case the good sense of the judge, enlightened by progressive awareness of mental illness, decides.'" 32
 
 

©  G. Kelly, 1997

1. [1895] 26 L.R.Ir. 428
2. [1925] 1 K.B. 141,C.A.
3. [1921] 3 K.B. 560
4. [1942] 2 All E.R. 396
5. quotation from McMahon & Binchy: Irish Law of Torts,2nd ed.305
6. "The Shock Cases and Area of Risk" (1953) 16 M.L.R. 14,22
7. [1983] 1 A.C. 410
8. @ p.419
9. Mantell J. delivered his judgment on 20.12.90
10. a judgment subsequently overturned by the Ct.of Appeal
11. cf.judgment of Mantell J. [1991] 3 All E.R. 65 @ 69
12. @ p.443
13. [1991] 3 All E.R. 73
14. [1991] 1 All E.R. 353
15. Alastair Mullis,LLB,LLM.,is a lecturer in law at King's College,London. (cf. All E.R. Annual Review 1991 @ 371 et seq.)
16. [1991] 3 All E.R. 88
17. cf.Cardozo C.J. in Ultramares Corp. v Touche [1931] 255 NY. 170, NY Ct.of Apps.
18. cf.Parker L.J. @ pp.97/98
19. my italics
20. [1983] 1 A.C. 410 @ 418/419
21. cf. judgment of Lord Wilberforce @ p.419
22. cf. judgment of Lord Bridge @ pp.431/432
23. cf. judgment of Denham J.in Mullally v Bus Eireann [1992] I.L.R.M. 722
24. [1995] 3 I.R. 253
25. [1983] 1 A.C. 410
26. cf. Hamilton C.J.@ p.259
27. cf. also judgment of Hamilton C.J.in Kelly v Hennessy @ 260
28. now Brennan C.J.
29. cf. McLoughlin v O'Brian @ p.423
30. Lynch v Knight [1861] 9 H.L.C. 577,590
31. cf. Slattery v O'Brien [1993].5.1407.
32. cf.Mantell J. in Hevican v Ruane [1991] 3 All E.R. 65 @ 72