The Gazette 1990

GAZETTE

MARCH 1990

Nervous shock, where are

we now?

Everyone reacts differently to a frightening experience. The more

robust members of society cope well, make a rapid recovery and

get on with life. For many others, the damage caused by a shocking

experience can be deep and lasting and much more disabling than

many physical injuries. A person who suffers a whip lash injury to

the neck, through the fault of another, is adequately compensated

for such a disruption to his life but what about the person who,

through the medium of the senses, suffers a lash to a much more

complex and delicate thing - the mind? To what extent will he be

compensated?

The purpose of this article is not

to record the historical develop-

ment of the award of damages for

nervous shock,

but to set out in a

summary way the extent to which

the law on nervous shock has

developed.

The number of Irish cases on

nervous shock is small. Although

there is no doubt that in appropriate

cases, Irish Courts will award dam-

ages for nervous shock

the extent

to which our Courts would be pre-

pared to go is unclear. Accordingly,

the law as set out hereunder is

mostly English Law and we cannot

be certain that it would be followed

by Irish Courts. One would hope

that, far from following English

decisions, the Irish Courts would

lead the way towards a more liberal

and compassionate development of

the law of compensation for mental

injury.

Before going into the specific

area of nervous shock, it is worth

saying a few words about foresee-

ability. On general principles,

foreseeability of loss is not in itself

sufficient to establish a duty of

care.

Donoghue -v- Stevenson,

Lord Atkin spoke not of a duty of

care to anyone to whom damage

can be foreseen but to those "so

closely and directly affected by my

act that I ought reasonably to have

them in contemplation as being so

affected".

There are two stages

in the test. Firstly, is there a suffici-

ent relationship of proximity of

neighbourhood, such that in the

reasonable contemplation of the

wrongdoer carelessness would be

likely to cause damage to the

Plaintiff - the

prima facie

duty of

care? Secondly, are there any con-

siderations which ought to nega-

tive or reduce or limit the scope of

the duty or the class of persons to

whom it is owed and/or the dam-

ages to which the breach of it may

give rise?

There are many cases

where, despite the proximity of the

wrongdoer to the victim and the

foreseeability of damage, the law

as a matter of policy denies the

existence of any duty of care or

alternatively excludes recovery on

the basis of "remoteness". Thus in

Leigh & Sillavan Ltd. -v- Aliakmon

Shipping Co. Ltd.,

Oliver J. gives

the example of an ironmonger who

opens a workshop next door to an

existing ironmonger and thereby

damages his business. "Policy"

can provide a convenient method

by which recovery for foreseeable

damage can be excluded. It is

important, however, that judges in

different courts should not simply

deny recovery on a willy nilly basis

citing "policy" as the reason. If

there are policy considerations they

should be cautiously used, logically

based, referrable to precedent and

properly articulated by the Superior

Courts on a case by case basis.

Such arguments as the classic but

discredited floodgates argument

are not good reasons for creating

new policies.

When it comes to recovery of

damages for nervous shock, the

dictum of Denning L. J. in

King -v-

Phi/ips

that "the test of liability

for shock is foreseeability of injury

by shock" has often been quoted

with approval. Injury by nervous

shock to the Plaintiff must be fore-

seeable to enable the Plaintiff to

recover damages for nervous

shock

since otherwise (in the

case of tort) the Defendant would

owe the Plaintiff no duty of care not

to inflict such damage and (in the

case of contract) the damage

would be too remote. It is irrelevant

whether the tortfeasor could or

could not foresee physical injury to

the claimant. It is foreseeability of

injury by nervous shock that is

relevant. Likewise, it is not necess-

ary in order for the tortfeasor to be

liable that he should foresee the

precise consequences of the ner-

vous shock, merely that he should

foresee the possibility of some

nervous shock. Once this is fore-

seeable the egg shell mind of the

Plaintiff which caused him or her to

suffer extreme and unforeseeable

consequences is irrelevant.

How-

ever, if the tortfeasor can only fore-

see physical injury - not nervous

shock, but the egg shell mind of the

Plaintiff causes him/her to suffer

nervous shock, damages under the

heading are not recoverable since

injury by nervous shock is not fore-

seeable and accordingly, there is no

duty to take care not to inflict ner-

vous shock or, alternatively, injury

by nervous shock is too remote.

The leading English case on

nervous shock is the House of

Lords decision in

McLough/in -v-

O'BrianJ

That was the case where

the Plaintiff's husband and three

children were involved in a road

traffic accident. The car in which

they were travelling was driven by

the Plaintiff's son. The Plaintiff was

not present at the scene of the

accident and did not hear it or see

it but she was told of the accident