UCD Tort 5 Slides - Loss of Chance and Damage (1) PDF

Tort Law: Negligence & Related Matters Dr. Sarah Fulham-McQuillan  Causation and Remoteness What is causation? How do courts determine whether the plaintiff’s harm was caused by the defendant’s negligence? Is the ‘but for’ test the best test to use i...

Tort Law: Negligence & Related Matters Dr. Sarah Fulham-McQuillan  Causation and Remoteness What is causation? How do courts determine whether the plaintiff’s harm was caused by the defendant’s negligence? Is the ‘but for’ test the best test to use in every case? If not, for which types of cases is it not suitable? What does it mean for the ‘chain of causation’ to be broken? How do courts test to see whether the plaintiff’s harm is too remote from the defendant’s negligence? What is the ‘egg shell skull’Dr. rule? Sarah Fulham-McQuillan Loss of a Chance “Loss of a chance is concerned with a person losing a chance of something that might have happened, but for the defendant’s negligence.” Two types: – physical injury has eventuated, – no physical injury has occurred. Dr. Sarah Fulham-McQuillan Asking not whether A caused B’s harm, but whether A deprived B of the opportunity or chance of a better outcome. Dr. Sarah Fulham-McQuillan Standard of proof… In tort law, and indeed, all civil law cases (so everything except criminal law) the onus or burden of proof is on the plaintiff to show that the defendant caused their injury. The plaintiffs have to prove that, on the balance of probabilities, the defendant caused their injury. That is called the standard of proof. Dr. Sarah Fulham-McQuillan Standard of proof… difficulties Standard of proof can cause problems when it comes to loss of chance because sometimes medical science shows that a person’s illness means that it is not probable that they will recover anyway, quite apart from anything that the doctor has done negligently. And in those cases, it can be difficult for the plaintiff to prove that the defendant probably caused their injury, because a court might say that the illness was the true case of the injury, not the doctor’s negligence. Dr. Sarah Fulham-McQuillan Chaplin v Hicks 2 KB 786 Claimant was an actress who entered a beauty contest organised by Hicks. Hicks advertised the contest in a newspaper. The readers of the newspaper were to vote and the top 50 would be invited to an interview where 12 would then be selected for employment. The claimant got through to the final 50 but did not receive her invitation for interview. Dr. Sarah Fulham-McQuillan  When she eventually did receive it, it was too late to attend. She brought an action based on her loss of a chance of winning the contest. She was awarded £100 assessed by the jury. Do you think she should have to prove that she would have been successful at interview? Dr. Sarah Fulham-McQuillan The Types of Loss of a Chance Solicitor’s negligence – loss of an economic chance Medical negligence – loss of a physical chance – a physical injury has eventuated, or – no physical injury has occurred. Dr. Sarah Fulham-McQuillan Loss of a Chance Chaplin v Hicks 2 KB 786 Tabet v Gett (2010) 240 CLR 537 Lawson v Lafferière 1 SCR 541 Hotson v East Berkshire Area Health Authority 2 All ER 909 Gregg v Scott 2 AC 176 Philp v Ryan 4 IR 421 Dr. Sarah Fulham-McQuillan Australia: Tabet v Gett Australian High Court held that loss of a chance was not damage in medical negligence. Claim for loss of a chance where a physical injury had occurred. A six-year old girl suffered brain damage and was left severely disabled as a result of surgery to remove a brain tumour. The surgery was not performed negligently, but, there was a delay in organising a CT scan, and therefore, in diagnosing the brain tumour. Dr. Sarah Fulham-McQuillan  The trial judge had found the defendant negligent, but not that he had caused the physical injury as, absenting the negligence, the tumour would have caused the brain damage. Instead, Studdert J, awarded damages for the ‘lost chance of a better medical outcome’. But the Court of Appeal set aside the trial judge’s holding, and held that chance was not actionable damage. In the High Court, the appellant sought to restore the trial judge’s holding. However, the six High Court judges dismissed the appeal. Dr. Sarah Fulham-McQuillan Canada: Lawson v Lafferière Supreme Court denied recovery for loss of chance in medical negligence, and this was restated in the later case of St-Jean v Mercier. A case of misdiagnosis and a failure to communicate a cancer diagnosis. The Supreme Court denied recovery for loss of a chance, saying that it was unsuitable in cases where death or sickness had eventuated. Dr. Sarah Fulham-McQuillan  But, the Court agreed to award damages for the mental distress in not being informed of her condition, and in being ignorant of her condition for four years. Also included in the award was the distress in discovering that she had been denied the opportunity of probable benefits arising from earlier treatment, the chance of her condition improving, and the better quality of life that she may have enjoyed. Dr. Sarah Fulham-McQuillan England: Hotson v East Berkshire Area Health Authority The claimant alleged that the respondent had materially increased the risk of developing necrosis, consequently developing into a permanent deformity of the hip. The claimant, a young boy, fell from a tree, and was admitted to hospital. There was a delay of five days in diagnosing the claimant’s fracture. Medical evidence showed that it was 75 per cent likely that he may have suffered the Dr. Sarah Fulham-McQuillan eventual injury of permanent deformity in  The House of Lords said that loss of chance was not a suitable basis for a claim in relation to past events, in other words, where the injury had already occurred, and in this case, that was the permanent deformity of the hip. Dr. Sarah Fulham-McQuillan England: Gregg v Scott (no physical injury) The patient in Gregg v Scott sued his doctor for the lost chance of recovery due to delayed diagnosis of cancer. Due to the delayed diagnosis, the treatment was delayed by nine months and the cancer spread. His initial recovery chances were determined at 42 per cent. These had been estimated to be reduced to 25 per cent at the date of trial. Dr. Sarah Fulham-McQuillan  Available medical evidence showed that out of 100 patients with a condition similar to Mr Gregg’s, only 42 would survive more than ten years, if treated immediately. The experts said that the delay had led to a further reduction in life expectancy, to 25 per cent. The trial judge dismissed the action holding that Mr Gregg would probably not have survived more than ten years anyway due to his medical condition. Dr. Sarah Fulham-McQuillan  What do you think the House of Lords held? Do you agree? Dr. Sarah Fulham-McQuillan  In the House of Lords, focus was on the fact that the claimant’s initial chance of recovery was below 50 per cent (42 per cent). So, it could not be said that, ‘but for’ the defendant’s negligence, the claimant probably would have recovered. It was not probable that he would have recovered anyway, even if no negligence had occurred. Dr. Sarah Fulham-McQuillan  Lady Hale, now first female President of the UK Supreme Court, showed an awareness of the need for change in the law, but ultimately decided that the policy difficulties would outweigh the advantages. Her main objection was the difficulty with a system that allowed a plaintiff to claim either for the outcome, or the chance of that outcome, citing the phrase ‘heads you lose everything, tails I win something’. She was concerned that plaintiffs would be able to claim for a physical injury, or Dr. for the Sarah chance Fulham-McQuillan of avoiding that injury.  Lord Nicholls dissented from the majority. He recognised that this is ‘a difficult area of the law’, and proposed that the claimant should be allowed to sue the doctor for the lost chance of a favourable outcome. Dr. Sarah Fulham-McQuillan Ireland: Philp v Ryan (no physical injury) The plaintiff sued Bons Secours Hospital and his attending consultant urologist for a delayed diagnosis, and claimed damages in negligence. Eight months had passed before Mr Philp’s prostate cancer was correctly diagnosed. He could not prove, on the balance of probabilities, that he had lost life expectancy, or that he had lost the chance of a beneficial outcome. This was due to conflicting medical evidence. Dr. Sarah Fulham-McQuillan  Mr Philp had attended Bons Secours Hospital after being referred by his GP. He complained of abdominal pain and difficulty urinating. He was seen by Dr Ryan, the defendant, and underwent some tests and a procedure. Between a series of incidents, the plaintiff’s cancer was not diagnosed for a number of months after his initial visit with Dr Ryan. The plaintiff suffered mental distress, believing that his life expectancy was shortened because of this delay in diagnosing him, and because of losing out on the opportunity of earlier treatment. But the medical evidence in the case was divided on whether earlier treatment would have been of any benefit to Mr Philp. Dr. Sarah Fulham-McQuillan  The High Court made an unusual award, awarding €45000 damages for Mr Philp’s mental distress. The Supreme Court went a step further, and awarded damages because the plaintiff had ‘been deprived of appropriate medical advice and the consequent opportunity to avail of treatment which might improve his condition.’ Dr. Sarah Fulham-McQuillan  The Court awarded €100,000, €50,000 of which were for aggravated damages. Aggravated damages are awarded when the defendant has done something that aggravates the effects of the negligent act that they have already committed. In Philp v Ryan, the doctor defendant had altered his clinical notes, taken at the time of the incident, to make it look like he was less negligent than he was. Dr. Sarah Fulham-McQuillan New Topic: Damage in What is actionable damage? Negligence What role does it play in the negligence action? What are the different types of actionable damage? What is the main type, and what new forms of damage have emerged? What restrictions are placed on the new forms of damage? Why have the courts placed these restrictions? Are they fair? Dr. Sarah Fulham-McQuillan  Damage Damage is the “Gist” of the Negligence action and is an essential part of the plaintiff’s case Without actionable damage, a plaintiff cannot get out of the starting blocks. Actionable damage is the term given to those interests that have been protected in previous cases. Examining new forms of damage: psychiatric injuries, infringement of autonomy, economic loss (damage vs damages?) Dr. Sarah Fulham-McQuillan (duty or damage?) ‘Actionable damage’ in the papers… Disconnect between academic ideas of damage and what happens in the courts: Facts: plaintiff was attempting to sue the State. She was raped by a man with whom she had a prior relationship, and with whom she had children. She moved house, and thought she was safe in the knowledge that the man did not know where she lived. However, he sought to bring family law proceedings, and in order to serve the summons, the summons server wanted to find out the plaintiff’s new address. He went to the Gardai, where a member of the Gardai access the database and gave the plaintiff’s new address to the summons server. When the plaintiff found out about this, she claims that she suffered personal injuries, and sued the State on that basis. Dr. Sarah Fulham-McQuillan  She claimed that she was severely shocked and alarmed that her attacker now knew her address, and it affected her recovery from the attack. She suffered an acute anxiety reaction and required anti-depressants and other medication. The State sought to have the claim dismissed before it even goes to trial, on the basis that the case was bound to fail/ showed no reasonable cause of action, and was frivolous/vexatious. The State applied to the High Court. Mr Justice Seamus Noonan dismissed the State’s application, and said that the plaintiff can proceed with trial. He said that the woman’s case raised a number of legal issues that needed to be addressed. Dr. Sarah Fulham-McQuillan  For our purposes, what is interesting about Judge Noonan’s decision are his comments on actionable damage: The State had tried to say that the plaintiff had not suffered any actionable damage, and so this was one of the reasons why her claim should not proceed to trial. The State argued that anxiety was not a recognized psychiatric illness, and that the headaches that she said she had suffered as a result of finding out about her attacker knowing her address, were not physical injury for the purposes of damage. However, Judge Noonan said: whilst anxiety is not a recognized psychiatric illness, depression is. Further, he said that headaches are often the basis of personal injury claims and so the claim could proceed. Dr. Sarah Fulham-McQuillan  Negligently Inflicted Psychiatric Injuries What is psychiatric harm? “mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone.” Lynch v Knight (1861) 9 HLC 577, 598, per Lord Wensleysdale. Dr. Sarah Fulham-McQuillan  When is psychiatric injury permitted as damage? Psychiatric injury is generally only permitted in the following situations : 1. where it happens subsequent to physical injury, 2. ‘nervous shock’ cases, 3. occupational stress-induced cases. Dr. Sarah Fulham-McQuillan What is the problem? McMahon and Binchy at p665 summarise the area nicely with the following example: “There is no problem with a broken leg or facial scar: these are simply and immediately characterised as physical injuries. However, a plaintiff’s loss may be more complex. The scar may cause distress or anxiety and may lead to the development of a psycho-somatic condition. The immobility or loss of employment may result in depression, leading to a suicide attempt. A person may suffer mental injury without any accompanying physical injury such as a broken leg or a scar. The suddent death of a loved one, caused by the defendant’s negligence, will foreseeably lead to mental distress, which in turn may lead to depression. The circumstances in which this death comes to the notice of the relative or close friend may themselves be traumatic and may lead to post-traumatic stress disorder (or, as the courts over many years have described it, ‘nervous shock’).” Dr. Sarah Fulham-McQuillan Has to be a form of recognised psychiatric illness: O’Connor v Lenihan IEHC 176 Larkin v Dublin City Council IEHC 416 Hegarty v Mercy University Hospital Cork IEHC 435 Dr. Sarah Fulham-McQuillan O’Connor v Lenihan IEHC 176 The plaintiff sued for damages arising out of the retention of organs of their two infants. The infants had died while the mother was giving birth in hospital. Peart J dismissed the case. He said that he was ‘unable to discover from any evidence [given by the psychiatrist] any reocgnised psychiatric illness having been suffered by [the mother], even though her anger and upset and grief are palpable’. A similar finding was made with regards to the father. Dr. Sarah Fulham-McQuillan Larkin v Dublin City Council IEHC 416 Clark J held that the employer owed a duty of care, and there was a breach, but no recognised psychiatric illness had been suffered by the plaintiff. No liability was owed on policy grounds. The facts were that the plaintiff was a fireman employed by the defendant. He was wrongly informed by the defendant that he had succeeded in an internal promotional exam. After being informed of this, the plaintiff was then told that there was in fact an error, and he was not being promoted. Dr. Sarah He Fulham-McQuillan sued the defendant. Clarke J: “The plaintiff did not and does not suffer from a recognizable psychiatric condition. He suffered undoubted upset, humiliation, sensitivity and disappointment but required no treatment or medical intervention. His employers quite correctly offered a full and reserved apology as soon as the mistake was discovered and he was offered €5,000 as an ex gratia payment. Counselling was offered and availed of. A period of six months leave was permitted during which time he stayed away from work and while leading a normal life. He then returned to the work which he loves and where the uncontroverted evidence is that he is an excellent and committed firefighter. He has not established any psychiatric illness such as depression or indeed any other illness. He is therefore akin to the person who suffers grief and distress who for public policy reasons is excluded from the recovery of damages. While there was a breach of duty it did not give rise to any injury which entitles the plaintiff to recover damages. I would dismiss this claim.” Dr. Sarah Fulham-McQuillan Hegarty v Mercy University Hospital Cork IEHC 435 Where hospital negligence was alleged when the plaintiff was diagnosed as being MRSA positive. The claim failed on unrelated grounds, but Irvine J said that, even if causation and liability were found, she would have dismissed the claim, as it did not relate to a compensatable injury. The plaintiff suffered high levels of stress and anxiety, but no recognised psychiatric illness. Irvine J looked at other cases on nervous shock, and said that the Dr. Sarah Fulham-McQuillan plaintiff’s claim was “as a matter of law … Broomfield v The Midland Health Board McKenzie J awarded a mother £35,000 damages for suffering serious agitation and stress. The plaintiff had given birth in the defendant hospital. However, when her baby was removed in order to afford her some rest, the hospital returned a different baby to her. The plaintiff formed an attachment to this baby over nine days. It was claimed that the plaintiff’s stress was augmented by the defendant’s refusal to provide the plaintiff with documentation that would have reassured her about her own Dr.child until a Sarah Fulham-McQuillan year after the event. This case is striking in a number of respects: there was no physical injury preceding the recovery for mental stress; it was not nervous shock; it was not a recognised psychiatric illness; and it was not an employer-employee relationship with occupation stress-induced psychiatric injury. Dr. Sarah Fulham-McQuillan Even where there is a recognised psychiatric illness, does there need to be physical injury, too? Dr. Sarah Fulham-McQuillan 1. Recovery for psychiatric illness in ‘fear of disease’ cases? Swaine v Commissioner for Public Works 1 IR 521 (SC). Fletcher v Commissioner of Public Works IESC 13 Dr. Sarah Fulham-McQuillan Swaine v Commissioner for Public Works 1 IR 521 (SC) A recognised psychiatric illness, no physical injury, and it was not within any of the other categories where recovery is permitted for pure psychiatric illness. A ‘fear of disease’ case, a category of cases that are controversial due to these very qualities. Dr. Sarah Fulham-McQuillan Swaine v Commissioner for Public Works The plaintiff was an employee of the defendant. He was exposed to a risk of fatal injury due to breathing asbestos in his workplace over a long period (basement of Leinster House). As a result, he suffered from chronic reactive anxiety neurosis. In the High Court, O’Neill J held the defendant guilty of ‘negligence of the grossest kind’, and awarded the plaintiff £45,000 plus £15,000 as aggravated damages. On appeal to the Supreme Court, the defendants only appealed on quantum, not liability as that had been conceded. So the main focus of the Supreme Court’s determination was the availability of aggravated damages in negligence law. Dr. Sarah Fulham-McQuillan Fletcher v Commissioner of Public Works IESC 13 Taken at the same time, for the same kind of negligence, and against the same employer as Swaine. Liability was conceded in Swaine, but, had it not been, it is likely that the Court would have taken the same stance as in Fletcher: that no liability was owed. Dr. Sarah Fulham-McQuillan Fletcher v Commissioner of Public Works The trial judge found the defendants to be grossly negligent for exposing the plaintiff to the risk of developing asbestosis, and increased risk of developing lung cancer. In evidence, it was suggested that it was unlikely that he ever would develop lung cancer, and that there was a very remote risk of contracting mesothelioma in the future. The plaintiff was found to be suffering from reactive anxiety neurosis, a recognised psychiatric illness. He was awarded £48,000. Dr. Sarah Fulham-McQuillan Dr. Sarah Fulham-McQuillan Fletcher v Commissioner of Public Works The defendants appealed, this time on liability, and on the fact that damages were awarded without a physical injury. The Supreme Court allowed the appeal, finding in favour of the defendant. Keane CJ delivered a considered judgment, which appeared to find no principle against recovery in the case. However, policy considerations led both Keane CJ and Geoghegan J (both of whom delivered separate judgments with Denham, Murray, and Hardiman JJ concurring) to hold that no Dr. Sarah Fulham-McQuillan compensation was owed.  It was noted that this was ‘uncharted territory’ for the courts because it was not a nervous shock case; rather it was a psychiatric illness engendered by ‘a combination of anger and anxiety which was the result of the plaintiff’s having been informed of his exposure to the risk of contracting mesothelioma because of his employers’ negligence.’ Dr. Sarah Fulham-McQuillan  It was said that: the question of liability must be resolved, not by the exclusion of the ‘eggshell skull’ principle, but by determining whether the absence of physical injury was fatal to the plaintiff's claim. That, in turn, depended on whether it fell within the category of ‘nervous shock’ cases, and, if not, whether liability could still arise in ‘fear of disease’ cases. Dr. Sarah Fulham-McQuillan  Keane CJ then observed that it was a question of policy whether the law should distinguish between a psychiatric illness brought about by nervous shock and a psychiatric illness like that suffered by the Mr Fletcher, where both are the foreseeable result of the defendant’s wrongdoing. Keane CJ noted that the injury was foreseeable, and that the size of the risk was irrelevant. Dr. Sarah Fulham-McQuillan He said: ‘it was reasonably foreseeable that the plaintiff would suffer a recognisable psychiatric disorder as a result of his taking medical advice and being informed that he was at risk of contracting the disease of mesothelioma, even though at the time of the proceedings he had not actually contracted that disease. Moreover, that result should also follow, irrespective of the extent of the risk.’ Dr. Sarah Fulham-McQuillan Keane CJ, obiter, said that: It is clear, however, that grief or mental anguish of that nature can result in recognisable psychiatric illnesses such as a reactive depression, and, in the light of developments in psychiatric medicine in recent decades, it must surely be questionable whether the inflexible boundary drawn by the law between recognisable psychiatric conditions, which are compensatable and grief or mental anguish, which is not, is entirely logical. Dr. Sarah Fulham-McQuillan 2. Nervous Shock Dr. Sarah Fulham-McQuillan What do you think are the main objections to recovery for psychiatric injury without physical injury?? Dr. Sarah Fulham-McQuillan Nervous Shock: The general exclusionary rule: Lord Steyn, White v Chief Constable of South Yorkshire Police 3 WLR 1509: 1. Difficulties in distinguishing between acute grief and diagnosed psychiatric illnesses. Further, the uncertainty in diagnosing psychiatric injuries generally and the difficulties in proving causation. 2. The effect that availabiltiy of compensation might have on plaintiffs, especially with regards to ascting as a disinecentive to getting better. 3. The floodgates concern: that it could encourage a large number of claims. 4. The potential unfairness in imposing damages on defendants that are not proportionate to their negligent conduct Dr. Sarah Fulham-McQuillan Incremental development: A. Psychiatric injuries were only allowed where they were suffered after a physical injury. B. Then the law moved on to looking at acses where the plaintiff was in danger of physical injury, and reasonably feared physical injury, but actually only suffered psychiatric injuries. For example, where a plaintiff is in a situation where he sees a car coming directly towards him at great speed, but he jumps to the side and avoids physical injuries. The courts showed a willingness in allowing recovery in these circumstances, maybe because of the fear he suffered of immediate physical injury. Dr. Sarah Fulham-McQuillan C. Where a plaintiff feared not of immediate physical injury ot himself, but to his family members. D. Finally, the courts said that where a Good Samaritan, in other words a person who rescues a stranger from danger, assists in the aftermath of an accident and suffers psychiatric injury, he could be compensated. Dr. Sarah Fulham-McQuillan  As McMahon and Binhcy note, the real problem came when the plaintiff was not near the scene of the accident at the time, but came in the aftermath of the accident and was exposed to the horror, and suffered some psychiatric injury as a result of that exposure. Another scenario is where a plaintiff is told of some shocking news concerning a family member, for example, and suffers some psychiatric injury. Dr. Sarah Fulham-McQuillan Courts have tried to put limits on recovery for psych injury. The difficulty is that these limits arent always logical, and don’t always appear to make sense, or even be fair. Initially, the test for psych injuries in these ‘nervous shock’ cases was foreseeability of the nervous shock - but, the House of Lords were not happy with awarding recovery in those circumstances – it would have been far too easy for a plaintiff to establish foreseeability of nervous shock. The response to this problem was to create two categories of victims: primary and secondary victims, in the case of Page v Smith AC 155. But in Ireland… Dr. Sarah Fulham-McQuillan Nervous Shock in Ireland Mullally v Bus Eireann ILRM 722 Kelly v Hennessy 2 IR 253 Dr. Sarah Fulham-McQuillan Mullally v Bus Eireann ILRM 722 The plaintiff’s husband and children were involved in a serious bus accident caused by the negligence of the defendant’s employee. The plaintiff learned of the accident when on a visit to another town with her brother and mother. Her brother received a phone message from his sister in law as well as a visit from the Gardai. The plaintiff, aware that something was wrong, phonde one hospital and was informed that one of her sons ‘was very bad’; she phoned another hospital and was told that her husband was dying and that a second son was also in that hospital. She could not find out at that time where her third son was taken. Dr. Sarah Fulham-McQuillan  The plaintiff was first of all driven home, and was told that her third son Paul was in the same hospital as one of her other sons, Francis. Denham J described the accident scene, saying that “there were bodies everywhere, people moaning and groaning and many distressed relatives milling around.” When the plaintiff saw her son Paul, she became very angry and distressed with the medical personnel – he was in a very bad way. She later came upon her other son Dr. Sarah Fulham-McQuillan Francis who was unreocgnisable because of  She went to the other hospital and her husband was fighting for his life. Her other son was in a less bad way but was very distressed – he had his ear stitched. The plaintiff was walking and talking mechanically but became hysterical when she got home. In the months following the accident, the plaintiff’s husband and two sons improved, but her other son Paul lost his life. Dr. Sarah Fulham-McQuillan  Denham J noted that the plaintiffs psychological condition had changed greatly from before the accident – Denham J stated that “she put down the shutters. She became very reserved. A new person emerged. She put all emotion aside … Her personality changed. She appeared frozen…”. Denham J said that the plaintiff had symptoms that were consistent with PTSD. Denham J said that this was a ‘is a psychiatric disease’. Dr. Sarah Fulham-McQuillan  She held that the plaintiffs’ condition was caused by the accident and its aftermath, and not grief. Applying the ‘ordinary criteria of reasonable foreseeability’ to the facts, and in view of the ‘ever advancing awareness of medical knowledge of mental illness’, Denham J said that it was reasonably foreseeable that a mother exposed to the experience that the plaintiff had gone through would break down and suffer illness. She said that ‘there was no policy in Irish law opposed to a finding of nervous shock, an old term covering post- traumatic stress disorder. indeed, the Irish courts were one of the first to find that such an illness existed and was compensatable..”. Dr. Sarah Fulham-McQuillan  Held by Denham J. in giving judgment for the plaintiff in the amount of £35,000 for general damages to date and £40,000 for the future, 1, there is no policy in Irish law opposed to a finding of nervous shock, an old term which covers post-traumatic stress disorder. The law is that a person who suffers nervous shock which results in psychiatric illness may succeed against a person who caused that nervous shock. 2. The plaintiff has suffered from post-traumatic stress disorder since 28 April, 1987, two days after the bus crash in which her family were injured which, for the purposes of this judgment, is a psychiatric disease with five criteria. Dr. Sarah Fulham-McQuillan  3. All the events which gave rise to the plaintiff's disorder were caused by the defendant. There was no other cause of the scenes in the hospitals or the injuries suffered save the defendant's negligence. It would be unjust and contrary to the fundamental doctrine of negligence not to find that there is a legal nexus between the actions of the defendant causing the accident and the resultant aftermath of the accident, including the appalling hospital scenes and the injuries to the plaintiff's family. 4. The defendant's duty of care extends to injuries which are reasonably foreseeable, thus the defendant is liable for the reasonably foreseeable psychiatric illness caused by their negligence. The plaintiff's shock and illness were foreseeable. Dr. Sarah Fulham-McQuillan Kelly v Hennessy 2 IR 253 The plaintiff was a married woman, and mother to two daughters and a son. One evening, her husband and daughters left their home in Meath to go to Dublin airpoirt to collect the plaintiff’s niece. Some time after 9:30pm, the niece rang the plaintiff to say that her husband and daughters had been seriously injured in a car accident. The plaintiff immediately went into shock, became upset and started vomiting. The pl was taken to the hospital where her family were, and each of them were in a dreadful condition. Dr. Sarah Fulham-McQuillan  One daughter made a full recovery, but her husband and other daughter both suffered brain damage. The car-crash had been caused by the negligence of the defendant in April, 1987. The plaintiff's husband and one of her daughters suffered permanent brain damage. The plaintiff had not been present at the crash, but had learnt of it by a telephone call. Dr. Sarah Fulham-McQuillan She sought damages for nervous shock from the driver of the car. The High Court found as a matter of fact that: (a) on hearing of the accident, the plaintiff immediately went into shock and commenced vomiting; (b) on the way to the hospital in which her family were being treated, she became ill; (c) her condition was gravely aggravated on seeing the state of her family; (d) the plaintiff suffered from post-traumatic stress disorder until 1992 at the earliest and continued to suffer from depression; (f) she was unlikely to make a full recovery. The High Court awarded damages of £35,000 for nervous shock to date, and £40,000 for the future. Dr. Sarah Fulham-McQuillan  On appeal, the defendant accepted that the plaintiff was suffering from post- traumatic stress disorder, but contended that it was not a psychiatric illness of the kind which gave rise to damages for nervous shock. It was also contended that the post-traumatic stress disorder and depression had been caused by the strain of caring for her family rather than shock attributable to the accident; that in refusing to take in trained help, the plaintiff had Dr. failed to Sarah Fulham-McQuillan mitigate her loss; and that the defendant did  Held by the Supreme Court (Hamilton C.J., Egan and Denham JJ.), in reducing the level of damages, 1, (per Hamilton C.J. and Egan J.), that in order to recover damages for nervous shock a plaintiff must establish:— (a) that he or she actually suffered a recognisable psychiatric illness; (b) that such illness was shock-induced; (c) that the nervous shock was caused by the defendant's act or omission; (d) that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff; (e) that the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general. Dr. Sarah Fulham-McQuillan  2. (per Hamilton C.J. and Egan J.) That the law permitted the recovery of damages for nervous shock and psychiatric illness induced thereby where a plaintiff came on the immediate aftermath of an accident - either at the scene or in hospital - involving a person with whom the plaintiff had a close relationship; and that in the instant case, the relationship between the plaintiff and those injured could not be closer. Dr. Sarah Fulham-McQuillan  (Per Denham J.) That where a person with a close proximate relationship to an injured person, while not a participant in an accident, heard of it very soon afterwards and visited the injured person as soon as practicable and was exposed to the serious injuries of the primary victim, that person became a secondary victim to the accident. Semble : (per Denham J.): That in the instant case it was not necessary to decide whether the test in relation to nervous shock was reasonable foreseeability simpliciter or whether the application of the test should be limited in terms of proximity of relationship, spatial proximity and temporal proximity. Dr. Sarah Fulham-McQuillan Primary and Secondary Victims Definition comes from Alcock v Chief Constable of South Yorkshire Police AC 310 originally, but applied as the following in Page v Smith 1 AC 155: Primary victims: a person might be able to recover where he/she was at risk of a foreseeable physical injury, but in fact suffered a psychiatric injury. Secondary victims: where a person was not at risk from any foreseeable physical Dr. Sarah Fulham-McQuillan injury, he/she cannot recover for any psychiatric injury.  Another way of describing the two categories is that primary victims might be able to claim for something that has happened to them (eg being involved in a car accident), as opposed to secondary victims who might not have been any more than a witness to something happening to other people (eg witnessing a car crash). So this distinction has been adopted in the English courts but has not really expressly been adopted in the Irish courts. There is no clear distinction between the two categories – they are more of a guideline as to what claimants need to satisfy before they can claim for psych injuries. Dr. Sarah Fulham-McQuillan Primary: Page v Smith The claimant had, in the past, suffered from a condition called ME: not a physical injury by definition, but one which causes severe fatigue – so it is a physical illness that operates through the mind and nervous system. It was in remission at the time of the minor car accident caused by the defendant’s negligence. No physical injuries were suffered by the claimant, but the ME resurfaced. The claimant argued that it had become chronic and permanent because Dr. Sarah of Fulham-McQuillan the accident.  The House of Lords, in a divided court, said that where it is reasonably foreseeable that the defendant’s negligence may cause physical harm to the claimant, they can also recover for any psych harm they might suffer. So the claimant was successful even though he suffered no physical injuries, and the psych injury was not reasonably foreseeable. The important thing is that he was in ‘the zone of physical danger’. This decisions has been criticised by academics for taking such a restrictive view of primary victims. Dr. Sarah Fulham-McQuillan Secondary A secondary victim is one who suffers psych injury as a result of witnessing someone else being harmed. But recovery is restricted by a number of control mechanisms that are driven by policy concerns. 1. The psych injury must be reasonably foreseeably in a person of ‘ordinary fortitude’ in the same circumstances. If a secondary victim suffers psych harm in circs where the person of ordinary fortitude would not, he will not be able to recover even if it is a severe psychological reaction… Dr. Sarah Fulham-McQuillan  But, if the psych injury was reasonably foreseeable to a person of ordinary fortitude, the defendant will be liable for any psych injury, even if extremely severe, on the basis of the eggshell skull rule. Dr. Sarah Fulham-McQuillan