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GAZETTE
were badly injured. Her husband and
one of her daughters were left brain
damaged and when released from
hospital, they returned home where Mrs.
Kelly looked after them. The other
daughter made a full recovery.
Mrs. Kelly instituted proceedings
against Mr. Hennessy seeking damages
for negligently inflicted nervous shock.
In the High Court, [1993] ILRM 530,
Lavan J held that on receiving the
telephone call regarding the accident,
Mrs. Kelly suffered immediate nervous
shock which was aggravated by the
scenes which she encountered at the
hospital. Lavan J accepted that the post-
traumatic stress disorder continued until
at least 1992 and that Mrs. Kelly still
suffered from serious depression and
that it was unlikely that she would ever
recover. Lavan J awarded Mrs. Kelly
£35,000 in March 1993 for past pain
and suffering and £40,000 for pain and
suffering in the future.
Kelly -v- Hennessy is a case that
will feature in all textbooks of
the future and learned articles
dealing with compensation for
psychiatric injury caused by the
negligence of another. This is a
case that will have considerable
significance for practitioners.
The defendant, Mr. Hennessy, appealed
to the Supreme Court. Lawyers for Mr.
Hennessy conceded that Mrs. Kelly had
suffered a post-traumatic stress disorder
but argued that this was not caused by
the shock of hearing about the accident
or witnessing the condition of her
family in the hospital but was a
consequence of the self-induced strain
of looking after her brain-damaged
husband and daughter at home.
Accordingly, that self-induced strain
was not sufficiently approximate to the
negligence of Mr. Hennessy, the driver
of the car.
The Supreme Court, (Hamilton CJ and
Denham J; Egan J concurring)
dismissed the appeal on the issue of
liability and, with Dehham J dissenting,
reduced the damages for future pain and
suffering to £20,000. The decision of
the court has important implications.
AUGUST/SEPTEMBER 1996
What are the Tests?
The learned judges reviewed the law
relating to post-traumatic stress disorder
incurred as a result of the negligence of
another. The Supreme Court laid down
several tests which a plaintiff must
establish in an action for damages for
"nervous shock".
• The plaintiff must establish that he
or she suffered a recognisable
psychiatric illness;
• The plaintiff must establish that
his or her recognisable psychiatric
illness was "shock induced";
• The plaintiff must prove that the
disorder was caused by a
defendant's act or omission;
• The psychiatric disorder sustained
by a plaintiff must have been
suffered by reason of actual or
apprehended physical injury to the
plaintiff or a person other than the
plaintiff; and
• To recover damages for
negligently inflicted psychiatric
injury, the defendant owed the
plaintiff a duty of care not to cause
him or her a reasonably
foreseeable injury in the form of
psychiatric harm or nervous shock.
It is not sufficient to show that
there was a reasonably foreseeable
risk of personal injury generally.
The Supreme Court having considered
the evidence and particularly the
evidence of Dr. Michael Corry,
Consultant Psychiatrist, held there was
credible testimony to support the finding
of Lavan J in the High Court that Mrs.
Kelly suffered psychiatric harm in the
sense of nervous shock in the immediate
aftermath of the accident which was due
to the negligence of Mr. Hennessy and
as a result she suffered a post-traumatic
stress disorder and depression. The
Supreme Court would not interfere
with those findings of Lavan J in the
High Court.
Mr. Hennessy had appealed to the
Supreme Court also on the grounds that
damages awarded by Lavan J were
excessive. Lavan J had awarded the sum
of £35,000 as damages to the date of
hearing and £40,000 in respect of pain
and suffering for the future. In relation
to damages for the future, Mrs. Kelly
was at the date of the hearing 52 years
of age and Lavan J found that she
continued to suffer from a serious
depression and that having regard to all
the evidence he doubted whether he
could be satisfied that she would ever
fully recover from what he perceived to
be a clear psychiatric illness.
The Supreme Court considered that the
onus was on Mrs. Kelly to establish on
the balance of probabilities that she
would not recover from this illness and
if she had discharged this onus, the
Supreme Court would have no
hesitation in accepting that the amount
awarded by Lavan J was fair and
reasonable. The Supreme Court
considered that Lavan J did not appear
to have been satisfied because he
anticipated at least a partial recovery.
In those circumstances, the Supreme
Court held (Denham J dissenting) that
the damages of £40,000 for future pain
and suffering were excessive and
substituted an award of £20,000 under
that heading.
Conclusion
This is an important case where
Hamilton CJ and Denham J reviewed
the authorities in Ireland, Australia and
the United Kingdom. This is a case that
will feature in all textbooks of the future
(and learned articles) dealing with
compensation for psychiatric injury
caused by the negligence of another.
This is a case that will have
considerable significance for
practitioners.
•
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