The Gazette 1996

GAZETTE

AUGUST/SEPTEMBER 1996

were badly injured. Her husband and one of her daughters were left brain damaged and when released from hospital, they returned home where Mrs. Kelly looked after them. The other daughter made a full recovery. Mrs. Kelly instituted proceedings against Mr. Hennessy seeking damages for negligently inflicted nervous shock. In the High Court, [1993] ILRM 530, Lavan J held that on receiving the telephone call regarding the accident, Mrs. Kelly suffered immediate nervous shock which was aggravated by the scenes which she encountered at the hospital. Lavan J accepted that the post- traumatic stress disorder continued until at least 1992 and that Mrs. Kelly still suffered from serious depression and that it was unlikely that she would ever recover. Lavan J awarded Mrs. Kelly £35,000 in March 1993 for past pain and suffering and £40,000 for pain and suffering in the future. Kelly -v- Hennessy is a case that will feature in all textbooks of the future and learned articles dealing with compensation for psychiatric injury caused by the negligence of another. This is a case that will have considerable significance for practitioners. The defendant, Mr. Hennessy, appealed to the Supreme Court. Lawyers for Mr. Hennessy conceded that Mrs. Kelly had suffered a post-traumatic stress disorder but argued that this was not caused by the shock of hearing about the accident or witnessing the condition of her family in the hospital but was a consequence of the self-induced strain of looking after her brain-damaged husband and daughter at home. Accordingly, that self-induced strain was not sufficiently approximate to the negligence of Mr. Hennessy, the driver of the car. The Supreme Court, (Hamilton CJ and Denham J; Egan J concurring) dismissed the appeal on the issue of

What are the Tests? The learned judges reviewed the law relating to post-traumatic stress disorder incurred as a result of the negligence of another. The Supreme Court laid down several tests which a plaintiff must establish in an action for damages for "nervous shock". • The plaintiff must establish that he or she suffered a recognisable psychiatric illness; • The plaintiff must establish that his or her recognisable psychiatric illness was "shock induced"; • The plaintiff must prove that the disorder was caused by a defendant's act or omission; • The psychiatric disorder sustained by a plaintiff must have been suffered by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff; and • To recover damages for negligently inflicted psychiatric injury, the defendant owed the plaintiff a duty of care not to cause him or her a reasonably foreseeable injury in the form of psychiatric harm or nervous shock. It is not sufficient to show that there was a reasonably foreseeable risk of personal injury generally. The Supreme Court having considered the evidence and particularly the evidence of Dr. Michael Corry, Consultant Psychiatrist, held there was credible testimony to support the finding of Lavan J in the High Court that Mrs. Kelly suffered psychiatric harm in the sense of nervous shock in the immediate aftermath of the accident which was due to the negligence of Mr. Hennessy and as a result she suffered a post-traumatic stress disorder and depression. The Supreme Court would not interfere with those findings of Lavan J in the High Court.

hearing and £40,000 in respect of pain and suffering for the future. In relation to damages for the future, Mrs. Kelly was at the date of the hearing 52 years of age and Lavan J found that she continued to suffer from a serious depression and that having regard to all the evidence he doubted whether he could be satisfied that she would ever fully recover from what he perceived to be a clear psychiatric illness. The Supreme Court considered that the onus was on Mrs. Kelly to establish on the balance of probabilities that she would not recover from this illness and if she had discharged this onus, the Supreme Court would have no hesitation in accepting that the amount awarded by Lavan J was fair and reasonable. The Supreme Court considered that Lavan J did not appear to have been satisfied because he anticipated at least a partial recovery. In those circumstances, the Supreme Court held (Denham J dissenting) that the damages of £40,000 for future pain and suffering were excessive and substituted an award of £20,000 under that heading.

Conclusion This is an important case where

Hamilton CJ and Denham J reviewed the authorities in Ireland, Australia and the United Kingdom. This is a case that will feature in all textbooks of the future (and learned articles) dealing with compensation for psychiatric injury caused by the negligence of another.

This is a case that will have considerable significance for practitioners.

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Mr. Hennessy had appealed to the Supreme Court also on the grounds that damages awarded by Lavan J were excessive. Lavan J had awarded the sum of £35,000 as damages to the date of

liability and, with Dehham J dissenting, reduced the damages for future pain and suffering to £20,000. The decision of the court has important implications.

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