The Gazette 1990

GAZETTE

MARCH 1990

Nervous shock, where are we now?

When it comes to recovery of damages for nervous shock, the dictum of Denning L. J. in King -v- Phi/ips 8 that "the test of liability for shock is foreseeability of injury by shock" has often been quoted with approval. Injury by nervous shock to the Plaintiff must be fore- seeable to enable the Plaintiff to recover damages for nervous shock 1 since otherwise (in the case of tort) the Defendant would owe the Plaintiff no duty of care not to inflict such damage and (in the case of contract) the damage would be too remote. It is irrelevant whether the tortfeasor could or could not foresee physical injury to the claimant. It is foreseeability of injury by nervous shock that is relevant. Likewise, it is not necess- ary in order for the tortfeasor to be liable that he should foresee the precise consequences of the ner- vous shock, merely that he should foresee the possibility of some nervous shock. Once this is fore- seeable the egg shell mind of the Plaintiff which caused him or her to suffer extreme and unforeseeable consequences is irrelevant. 9 How- ever, if the tortfeasor can only fore- see physical injury - not nervous shock, but the egg shell mind of the Plaintiff causes him/her to suffer nervous shock, damages under the heading are not recoverable since injury by nervous shock is not fore- seeable and accordingly, there is no duty to take care not to inflict ner- vous shock or, alternatively, injury by nervous shock is too remote. 10 The leading English case on nervous shock is the House of Lords decision in McLough/in -v- O'BrianJ That was the case where the Plaintiff's husband and three children were involved in a road traffic accident. The car in which they were travelling was driven by the Plaintiff's son. The Plaintiff was not present at the scene of the accident and did not hear it or see it but she was told of the accident

Everyone reacts differently to a frightening experience. The more robust members of society cope well, make a rapid recovery and get on with life. For many others, the damage caused by a shocking experience can be deep and lasting and much more disabling than many physical injuries. A person who suffers a whip lash injury to the neck, through the fault of another, is adequately compensated for such a disruption to his life but what about the person who, through the medium of the senses, suffers a lash to a much more complex and delicate thing - the mind? To what extent will he be compensated?

Plaintiff - the prima facie duty of care? Secondly, are there any con- siderations which ought to nega- tive or reduce or limit the scope of the duty or the class of persons to whom it is owed and/or the dam- ages to which the breach of it may

The purpose of this article is not to record the historical develop- ment of the award of damages for nervous shock, 1 but to set out in a summary way the extent to which the law on nervous shock has developed. The number of Irish cases on nervous shock is small. Although there is no doubt that in appropriate cases, Irish Courts will award dam- ages for nervous shock 2 the extent to which our Courts would be pre- pared to go is unclear. Accordingly, the law as set out hereunder is mostly English Law and we cannot be certain that it would be followed by Irish Courts. One would hope that, far from following English decisions, the Irish Courts would lead the way towards a more liberal and compassionate development of the law of compensation for mental injury. Before going into the specific area of nervous shock, it is worth saying a few words about foresee- ability. On general principles, foreseeability of loss is not in itself sufficient to establish a duty of care. 3 In Donoghue -v- Stevenson, Lord Atkin spoke not of a duty of care to anyone to whom damage can be foreseen but to those "so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected". 4 There are two stages in the test. Firstly, is there a suffici- ent relationship of proximity of neighbourhood, such that in the reasonable contemplation of the wrongdoer carelessness would be likely to cause damage to the

give rise? 5 There are many cases where, despite the proximity of the wrongdoer to the victim and the foreseeability of damage, the law as a matter of policy denies the existence of any duty of care or alternatively excludes recovery on the basis of "remoteness". Thus in Leigh & Sillavan Ltd. -v- Aliakmon Shipping Co. Ltd., 6 Oliver J. gives the example of an ironmonger who opens a workshop next door to an existing ironmonger and thereby damages his business. "Policy" can provide a convenient method by which recovery for foreseeable damage can be excluded. It is important, however, that judges in different courts should not simply deny recovery on a willy nilly basis citing "policy" as the reason. If there are policy considerations they should be cautiously used, logically based, referrable to precedent and properly articulated by the Superior Courts on a case by case basis. Such arguments as the classic but discredited floodgates argument are not good reasons for creating new policies. 7 .

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