The Gazette 1990

GAZETTE

nua

february

1990

She was not entitled to damages

for grief and worry

per se

but in-

sofar as that grief and worry ag-

gravated her physical sufferings

caused by the negligent attempts

at delivery or prolonged her

recovery from those injuries, it

could be taken into account.

Finally, it is worth considering an

interesting case which occurred

near the frontiers of the existing law

on nervous shock. This was

Attia

-v- British Gas

(1987)

. That case

concerned a woman who claimed

that she suffered nervous shock as

a result of watching her house and

contents being extensively burned

in a fire that was caused by the

Defendant's negligence. Thus, the

Plaintiff had no apprehension of in-

jury to herself or any other person

- merely to her property. On a

preliminary application by the

Defendants, the High Court held

that it was not reasonably foresee-

able that the Plaintiff might suffer

psychiatric illness as a result of

watching her house and contents

being burned in a fire started by the

Defendant's negligence. The Court

of Appeal, however, reversed that

decision and held that it was a mat-

ter of fact to be decided on the

evidence whether or not such an

injury was reasonably foreseeable.

Woolf and Bingham L. J J . also held

that there was no general rule of

law that claims for damages for

nervous shock were excluded

where they related to witnessing or

apprehending injury to property,

rather than death or injury to per-

son. Everything depended on its

own facts. In relation to this case,

it should be noted that the Defen-

dant had a contractual relationship

with the Plaintiff since they were

carrying out works on her home,

they clearly owed her a duty of care

not to start a fire and could have

foreseen the risk of some injury to

her as she may have gone in to save

her possessions or telephone the

fire brigade.

G E N E RAL P R I NC I P L ES

From the above, some general prin-

ciples can be deduced.

1. Nervous shock is invariably

associated with both physical

symptoms (shaking, crying,

etc.) and mental symptoms

(anxiety, depression, personali-

ty change, neurosis, etc.)

2. Physical contact with the

wrongdoer is not necessary to

recover damages.

3. The Plaintiff need not show that

he himself was in danger of

physical impact.

4. Injury by nervous shock to the

Plaintiff, must be foreseeable to

enable a Plaintiff to recover

damages.

5. As a general rule, foreseeability

of injury to the Plaintiff by ner-

vous shock is sufficient for the

recovery of damages. However,

notwithstanding the fact that

such injury is foreseeable, there

are some cases where recovery

will be denied on the basis of

remoteness or policy considera-

tions.

6. It is more likely that shock to a

relative or close friend of the

victim would be regarded as

foreseeable, than shock to a

total stranger.

7. Shock to a person who sees or

hears an accident is normally

regarded as foreseeable, pro-

vided there is reasonable appre-

hension of injury to himself or

to his property or to a relative,

friend or other person.

8. Shock to a rescuer who comes

on the aftermath of an accident,

is normally regarded as fore-

seeable.

C A S E S WHE RE T H E RE HAS

BE EN RECOVERY

Without in any way attempting to

limit the scope of the doctrine of

compensation for nervous shock, it

may be helpful to classify the cases

in which damages have been

recovered.

1. Nervous shock associated with

other physical injury to the

direct victim of a wrongful act.

Thousands of cases have been

successfully brought under this

heading. See especially

Hogg -

v- Keane

[1956] I.R. 155.

2. Nervous shock only, to the direct

victim of a wrongful

act.

Cases which illustrate this classi-

fication are

Wilkinson

-v-

Downton,

Janvier

-v-

Sweeney,

and for an illustra-

tion of a slander case where

recovery was denied see

A/lsop

-v- A/lsop.

3. Nervous shock to a person

present at a wrongful act who

apprehends injury to himself.

See

Dulieu -v- White

4. Nervous shock to a person

present at a wrongful act who

apprehends injury to another

person, (a) spouse and child-

ren,

(b) fellow workers.

5. Nervous

shock

person

present at a wrongful act who

apprehends damage to proper-

ty.

See

Attia -v- British Gas J

6. Nervous shock to a person

present at a wrongful act who

witnesses a ghastly spectacle

(other than injury to person or

the consequences therof).

See

Owens -v- Liverpool Corpora-

tion

(40) - where a hearse

containing a relative's coffin

overturned.

7. Nervous shock to a person who

does not witness the wrongful

act but hears of it later or sees

its consequences,

(a) rescuer cases;

(b) mother after caesarean. See

Kralj -v- McGrath;

(c) mother going to scene of an

accident and seeing injured

son;

(d) mother/wife not at the scene,

but seeing the consequences

at a hospital. See McLoughlin -

v- O'BrianJ

(e) mother who heard from her

husband that two of her child-

ren had been killed in a

crash;

(f) wife who heard in hospital of

her husband's death. See

Schneider -v- Eisovitch.

THE FUTURE?

In the light of modern case law, the

drawing of an arbitrary line be-

tween grief and nervous shock

which denies the recovery of

damages for grief, anxiety and

emotional distress but permits

recovery for nervous shock, seems

to be totally unreal. We are told that

this is a distinction embedded in

the common law. If it ever was

embedded (and the paucity of

authority would appear to cast

doubt on that), it is clear that such

a principle does not for practical

purposes exist in contract and in

tort there are a number of specific

instances where it does not appear

to apply. Although

McLoughlin -v-

O'Brian

has yet to be expressly

approved by the Supreme Court,

the principle that one can recover

damages for nervous shock is

firmly established in Irish law and

it would be unlikely that the