The Gazette 1990

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GAZETTE j Anua Ry/february 1990
by a motorist and went to the
hospital where she saw the
injured members of her family. As
a result of this, she suffered
nervous shock. The High Court and
Court of Appeal dismissed her
claim but the House of Lords held
that the test of liability for damages
for nervous shock was reasonable
foreseeability and, applying that
test, the Plaintiff was entitled to
recover.
The most recent Irish case is The
State (John Keegan and Eoin J.
Lysaght) -v- The Stardust Victims
Compensation Tribunal.11 John and
Christine Keegan lost two
daughters in the Stardust Fire and
a third was seriously burned. John
Keegan submitted fatal injuries
claims arising out of the death of
his two daughters and in each case
the tribunal awarded damages in-
cluding damages for mental dis-
tress. These damages were
apportioned between John Keegan
and the other dependants. Both
John Keegan and his wife sub-
mitted separate claims for nervous
shock. It is interesting to note that
the Attorney General conceded, for
the purposes of the claims, that
they should be approached on the
basis of the Judgment of Lord
Wilberforce in McLoughlin -v-
O'Brian. There, Lord Wilberforce
summed up, in five paragraphs,
what he saw as the state of the
law. They were referred to both by
[In the most recent Irish esse]
the Attorney General
conceded that [the claims]
should be approached on the
basis of . . . McLoughlin -v-
O'Brian."
Finlay C. J. and Henchy J. in the
Supreme Court. They are as
follows:
1. 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.
2. A Plaintiff may recover dam-
ages for nervous shock brought
on by injury caused not to him
or herself but to a near relative,
or by fear of such injury.
3. Subject to the next paragraph,
there is no English case in
which a Plaintiff has been able
to recover nervous shock dam-
ages where the injury to the
near relative occurred out of
sight and ear shot of the
Plaintiff.12.
4. An exception from or (as Lord
Wilberforce would prefer to call
it) an extension of, the latter
case has been made where the
Plaintiff does not see or hear
the incident but comes on its
immediate aftermath.
5. A remedy on account of ner-
vous shock has been given to a
man who came on a serious
accident involving people
immediately thereafter and
acted as a rescuer of those
involved.
The Supreme Court made it clear
that it was not approving or
disapproving of the decision in
McLoughlin -v- O'Brian nor was it
saying that it represented the law
of this country. That would have to
await an appropriate case.13
Despite the criticisms contained
in some of their Lordships Judg-
ments in McLoughlin -v- O'Brian, of
the reasoning and conclusions con-
tained in some other Judgments in
that case, I would venture to sug-
gest that the differences are more
apparent than real. All five Law
Lords agreed that reasonable fore-
seeability of injury by nervous
shock was the criterion for re-
coverability of damages and all five
agreed that the nervous shock of a
mother who arrived in hospital to
see her injured husband and
children was reasonably foresee-
able by the negligent motorist. All
five agreed that it was not nec-
essary for the mother to be present
at or to see or hear the accident
itself. The only differences were
that Lord Wilberforce emphasised
that liability in negligence, based on
foreseeability, only extends to
those closely and directly affected
by one's act (but nevertheless
accepted that the Plaintiff was
such a person) and Lord Edmund-
Davies kept the door open for
"policy" restricting the unlimited
application of recoverability based
on foreseeability, whereas the
others (although they did not dis-
pute the general applicability of this
principle) felt that there were no
such policy considerations applic-
" . . . the five
statements . . . in the speech
of Lord Wilberforce [in
McLoughlin] . . . [were] . . . to
summarise the development of
the law up to [then]."
able to this area of law. In the
context of the manner in which
McLoughlin -v- O'Brian was treated
in the Stardust case, it is important
to note that the five statements
contained in the speech of Lord
Wilberforce were, I would suggest,
never meant to be rigid classifica-
tions of the cases in which re-
covery would be granted but
merely a convenient grouping of
cases to summarise the develop-
ment of the law up to the decision
in that case.14
NERVOUS S HOCK
Section 49 of the Civil Liability Act,
1961, introduced the concept of
damages for the mental distress
suffered by dependants following
upon fatal injuries. This was initially
limited to £1,000 and later in-
creased by the Courts Act, 1981, to
£7,500. Subject to that statutory
exception, it is the Law (in England
at least) that one cannot recover
damages in tort for grief, worry or
emotional distress (the so called
"normal reactions"). 15 Before
damages can be recovered for a
mental reaction such as this, it
must be what lawyers call
"nervous shock".16
It is not at all clear precisely what
is meant by "nervous shock". In
Behrens -v- Bertram Mills Circus,
Devlin J. said "When the word
"shock" is used in "the cases", it
is not in the sense of mental
reaction but in the medical sense as
the equivalent of nervous shock".
In the normal course of events,
nervous shock although a mental
reaction is invariably associated
with physical symptoms of varying
severity such as shaking, crying or
even death (as in Hambrook -v-
Stokes Brothers [1925] 1 K.B. 141).
In McLoughlin, -v- O'Brian, Lord
Russell used the phrase "mental
trauma". In Brice -v- BrowE7
Stuart-Smith J. described it as "a
convenient phrase to describe
mental injury or psychiatric illness
to distinguish it from, on the one
hand, grief and sorrow and, on the
other, physical or organic injury.
The psychiatric injury does not
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