The Gazette 1990

GAZETTE

MARCH 1990

have to have any particular label or

term of art applied to it. Used in the

sense which I have indicated the

Plaintiff in my judgment has to

establish three things: firstly that

the circumstances of the accident

caused or materially contributed to

the nervous shock; secondly that

the nervous shock was reasonably

foreseeable by the tortfeasor as a

" . . . the Plaintiff has to

establish [causa] . . . and

[reasonable forasaeability] . . . "

natural and probable consequence

of a breach of his duty of care. For

this purpose the Plaintiff is assum-

ed to be a person of normal dis-

position and phlegm

this

would exclude the pursuer in

Hay

(or Bournhill) -v- Young

as a person

who faints at the sight of a road

accident no matter who is involved.

And, thirdly, that once the first two

matters are established the Plaintiff

is entitled to compensation for ner-

vous shock and such of its conse-

quences as were not dissimilar in

kind, whether or not the same were

initially reasonably to be foreseen".

In one of the latest cases on the

subject

Attia -v- British

Gas

Bingham L. J. described it as "a

misleading and inaccurate ex-

pression" and instead used the

general expression "psychiatric

damage" intending to comprehend

within it "all relevant forms of

mental illness, neurosis and

personality change".

One finds it hard to justify the

distinction between recoverability

of damages for nervous shock and

non-recoverability for grief, sorrow

or emotional distress. There is no

sharp dividing line between deep

emotional distress and nervous

shock. In certain cases (for example

assault, defamation), we permit the

recovery of aggravated damages

for humiliation and injury to feelings

- reactions much milder than grief

or emotional distress. Likewise, if a

bride can get damages for distress

and disappointment because she

had no pictures of her wedding

day

or if a holidaymaker can get

damages for distress and dis-

appointment because he didn't

have the "great time" he was

promised;

if an investor who was

deceived into buying shares in a

company that are not the vendor's

to sell can get aggravated damages

for his injured feelings;

if a per-

son who suffers great personal

strain as a result of his Solicitor's

negligence in a property trans-

action can get damages for this

and if as is becoming common-

place, a person directly injured by

a wrongful act can get compensa-

tion for depression, it is a bit hard

to see why the genuine and fore-

seeable grief and worry of a near

relative should not form the subject

of damages. Surely the distinction

ought to be relevant only to the size

of the award?

It was two Irish cases that first

established a cause of action for

nervous shock and lead the way for

English Courts that had already

decided that such claims unaccom-

panied by physical injury were

inadmissible. In

Victoria Railways

Commissioners -v- Cou/tas

the

Plaintiff, a pregnant lady who was

a passenger in a buggy, suffered a

severe nervous shock which

caused her to faint and miscarry

when a negligent gate keeper

allowed the buggy to cross the line

and it was narrowly missed by a

train. The Privy Council clearly

affected by the floodgates argu-

ment, reversed the inferior Courts

award of damages and dismissed

the claim.

However, in

Byrne -v- Great

Southern and Western Railway

Company

the Irish Court of

Appeal had awarded damages for

"It was two Irish cases that

first established a cause of

action for nervous shock

nervous shock to a telegraph super-

intendant whose office had been

struck by a train, and in

Bell -v-

Great Northern Railway

Com-

pany

(decided after the

Victoria

Railways

case) a passenger was

awarded damages for nervous

shock sustained when a carriage

became unhooked and rolled down

a hill. In that case, Murphy J.,

discussing what the damages

could be awarded for, said that it

was immaterial what name was

given to the injuries. "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 enjoy-

ment of life affected by what

occurred to her whilst in the

carriage?" Next, was this caused

by the negligence of the Defend-

ants?" One would hope that using

C OMP A NY

S E CRE T AR I AL

C O N S U L T A NT

PETER H. QUINLAN

MBA, AITA

OFFERS

COMPLETE

COMPANY SERVICE

Advice on Corporate Procedures

Drafting of Resolutions and Minutes

Arrangement of Company Meetings

Searches and Updates of

Company Records

Filing Returns and Other Compliance

67 LANSDOWNE ROAD

DUBL IN 4

Tel.: (01) 684245

this enlightened approach, Irish

Courts would refuse to consider

themselves confined to nervous

shock and unable to compensate

Plaintiffs for emotional distress,

worry and grief. For example, a

mother who sees her young child

run down and suffer life threatening

injuries might suffer great emot-

ional distress and worry particularly

if the treatment is prolonged or

involves many surgical procedures.

Indeed, she may have to witness

for the rest of her life her child

growing up disabled or physically

deformed. Is she to be denied com-

pensation merely because her

injuries are not sufficiently severe

to fall into the category of nervous

shock?

Indeed, in Britain there are grow-

ing signs of unease with this

arbitrary rule. Thus, in

Whitmore

-v- Auto Transposes Julia S.A.

the Plaintiff and her husband were

injured coming home from Spain in

a bus crash in France. The husband

was seriously injured. The wife

claimed damages for shock as a

result of seeing him injured and