The Gazette 1990

GAZETTE

nua

y/february

1990

seeing the serious consequences

of his injuries. There, Comyn J.

said "There is no use in having

views unless one is prepared to

state them boldly and I do strongly

hold the view that the law is harsh

in making worry, strain and stress

wholly irrecoverable as a head of

damage in a case such as this . . . I

hold that the shock she suffered

and the shock she suffered (a) on

her own behalf and (b) on her hus-

band's behalf was shock in the or-

dinary, general, everyday meaning

of the word and not in any medical

or psychiatric sense". Never-

theless, he awarded her com-

pensation. In

Brooks -v- Wessex

Regional Health Authority

woman gave birth to a severely

retarded baby who lived and whom

she commenced to look after in her

own home. A claim for damages

was brought both on behalf of the

child and on her own behalf. Her

claim included a claim for damages

for shock. There was apparently no

suggestion of any psychiatric il-

lness or anything other than the

natural upset and strain of such a

situation. Indeed, the report would

suggest that the woman was an

extremely well balanced and caring

person. The Judge recited the dis-

tinction between grief and sorrow

on the one hand and nervous shock

on the other, and then went on to

award the Plaintiff damages under

the latter heading.

The concept of what can and

what cannot be compensated has

not been very clearly defined in

Ireland. Thus, in

Cosgrove -v-

Ireland

the Plaintiff recovered

damages for mental distress and

anxiety caused by deprivation of

constitutional and statutory rights.

Whe/an -v- Madigan

a tenant

recovered damages for mental dis-

tress and shock inflicted as a result

of a landlord's trespass.

Four recent English cases demon-

strate the extent to which English

Law has now developed. In

Gait -

v- British Railways Board

[1983],

a train driver driving his train around

a bend at speed, suddenly came

upon workmen on the line. There

was no lookout man, as the defend-

ants' regulations required. The

Plaintiff blew the horn repeatedly,

but it was only when he was six or

seven yards away from them that

they got out of the way. He thought

he was going to hit them and suf-

fered nervous shock which brought

on a heart attack (which he surviv-

ed). Tudor-Evans J. held: -

(a) that the workmen owed a du-

ty of care to get off the line not

only to the driver but also to

the public,

(b) that the risk of injury by ner-

vous shock 'to the driver was in

such circumstances foresee-

able and the Defendants owed

the Plaintiff a duty of care not

to expose him to injury by ner-

vous shock in such circum-

stances,

( c) the coronary attack conse-

quent on the nervous shock

came within the egg shell skull

principle and the Defendants

were liable for that also.

Ibrahim (a minor) -v- Muham-

mad

[1984],

young Tayfun

Ibrahim when five years of age,

underwent an operation to be cir-

cumcised in accordance with the

Moslem religion. The Defendant

who was a doctor, carried out the

operation. In accordance with tradi-

tion, a big hall was hired for a party

and 200/250 people were invited.

After the party had started, the

young boy was taken home by his

mother so that the Defendant could

carry out the circumcision. The

parents and various family friends

were present. The father was

operating a cine camera. The

mother stepped out but was just

around a door. The Defendant then

invoked the name of a deity and

was seen to carry out a slashing

movement. The boy screamed. The

mother ran in to discover that blood

was spouting from his penis, about

half of which the Defendant had cut

off. There followed a dash to the

hospital and days of waiting to find

out if the operation to re-attach the

severed part was successful (it

transpired in medical terms to be a

success). The reader familiar with

awards in the Irish Courts, will be

surprised to note that for this injury

and added psychological sequelae

which I have not detailed, the poor

infant was awarded a mere

£10,000 damages and the parents

£3,000 each for nervous shock!

A most instructive case is that of

Kralj -v- McGrath

[1985].

In that

case, the Plaintiff was expecting

twins and Mr. McGrath was her

gynaecologist. She was a private

patient and, accordingly, there was

a contractual relationship between

them. The first twin was born nor-

mally but the second twin was in a

transverse position. The Defendant

attempted to turn it manually with-

out administering an anaesthetic to

the Plaintiff. This treatment was

described by a professor of gynae-

cology in evidence, as "horrific and

completely unacceptable and must

have caused the Plaintiff excruci-

ating pain". The Plaintiff was con-

scious during all of this but later

underwent caesarean section for

delivery of the second twin. When

she was in post-natal recovery she

was told that the second twin was

a bit poorly and had been taken to

another hospital. Later she was told

that he had in fact died but had

been resuscitated after about 20

minutes. She saw him two days

later. He was in an incubator and

was convulsing, twisting and would

not cry, suck or swallow. She was

told that if he survived, he would be

a vegetable. Eight weeks later he

died. The Plaintiff said in evidence

that she felt devastated and guilty

because she had hoped the child

would die and the guilt would be

with her all her days. She was also

terrified of having another child.

Although there is no doubt that the

Plaintiff suffered dreadful emotional

distress including grief, guilt and

worry, there was apparently no

psychiatric evidence of nervous

shock. Woolf J. (as he then was)

held that the Plaintiff was entitled

to damages for "the shock she

undoubtedly suffered as a result of

being told what happened to Daniel

and of seeing him during her visits".

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