The Gazette 1990

j A nua R y / february

1990

GAZETTE

by a motorist and went to the hospital where she saw the injured members of her family. As a result of this, she suffered nervous shock. The High Court and Court of Appeal dismissed her claim but the House of Lords held that the test of liability for damages for nervous shock was reasonable foreseeability and, applying that test, the Plaintiff was entitled to recover. The most recent Irish case is The State (John Keegan and Eoin J. Lysaght) -v- The Stardust Victims Compensation Tribunal . 11 John and Christine Keegan lost two daughters in the Stardust Fire and a third was seriously burned. John Keegan submitted fatal injuries claims arising out of the death of his two daughters and in each case the tribunal awarded damages in- cluding damages for mental dis- tress. These damages were apportioned between John Keegan and the other dependants. Both John Keegan and his wife sub- mitted separate claims for nervous shock. It is interesting to note that the Attorney General conceded, for the purposes of the claims, that they should be approached on the basis of the Judgment of Lord Wilberforce in McLoughlin -v- O'Brian. There, Lord Wilberforce summed up, in five paragraphs, what he saw as the state of the law. They were referred to both by [In the most recent Irish esse] the Attorney General conceded that [the claims] should be approached on the basis of . . . McLoughlin -v- O'Brian." Finlay C. J. and Henchy J. in the Supreme Court. They are as follows: 1. While damages cannot, at Common Law, be awarded for grief and sorrow, a claim for damages for nervous shock caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself. 2. A Plaintiff may recover dam- ages for nervous shock brought on by injury caused not to him or herself but to a near relative, or by fear of such injury.

3. Subject to the next paragraph, there is no English case in which a Plaintiff has been able to recover nervous shock dam- ages where the injury to the near relative occurred out of sight and ear shot of the Plaintiff. 12 . 4. An exception from or (as Lord Wilberforce would prefer to call it) an extension of, the latter case has been made where the Plaintiff does not see or hear the incident but comes on its immediate aftermath. 5. A remedy on account of ner- vous shock has been given to a man who came on a serious accident involving people immediately thereafter and acted as a rescuer of those involved. The Supreme Court made it clear that it was not approving or disapproving of the decision in McLoughlin -v- O'Brian nor was it saying that it represented the law of this country. That would have to await an appropriate case. 13 Despite the criticisms contained in some of their Lordships Judg- ments in McLoughlin -v- O'Brian, of the reasoning and conclusions con- tained in some other Judgments in that case, I would venture to sug- gest that the differences are more apparent than real. All five Law Lords agreed that reasonable fore- seeability of injury by nervous shock was the criterion for re- coverability of damages and all five agreed that the nervous shock of a mother who arrived in hospital to see her injured husband and children was reasonably foresee- able by the negligent motorist. All five agreed that it was not nec- essary for the mother to be present at or to see or hear the accident itself. The only differences were that Lord Wilberforce emphasised that liability in negligence, based on foreseeability, only extends to those closely and directly affected by one's act (but nevertheless accepted that the Plaintiff was such a person) and Lord Edmund- Davies kept the door open for "policy" restricting the unlimited application of recoverability based on foreseeability, whereas the others (although they did not dis- pute the general applicability of this principle) felt that there were no such policy considerations applic-

" . . . the five statements . . . in the speech of Lord Wilberforce [in McLoughlin] . . . [were] . . . to summarise the development of the law up to [then]." able to this area of law. In the context of the manner in which McLoughlin -v- O'Brian was treated in the Stardust case, it is important to note that the five statements contained in the speech of Lord Wilberforce were, I would suggest, never meant to be rigid classifica- tions of the cases in which re- covery would be granted but merely a convenient grouping of cases to summarise the develop- ment of the law up to the decision in that case. 14 NERVOUS S HOCK Section 49 of the Civil Liability Act, 1961, introduced the concept of damages for the mental distress suffered by dependants following upon fatal injuries. This was initially limited to £1,000 and later in- creased by the Courts Act, 1981, to £7,500. Subject to that statutory exception, it is the Law (in England at least) that one cannot recover damages in tort for grief, worry or emotional distress (the so called "normal reactions"). 15 Before damages can be recovered for a mental reaction such as this, it must be what lawyers call "nervous shock". 16 It is not at all clear precisely what is meant by "nervous shock". In Behrens -v- Bertram Mills Circus, Devlin J. said "When the word "shock" is used in "the cases", it is not in the sense of mental reaction but in the medical sense as the equivalent of nervous shock". In the normal course of events, nervous shock although a mental reaction is invariably associated with physical symptoms of varying severity such as shaking, crying or even death (as in Hambrook -v- Stokes Brothers [ 1925] 1 K.B. 141). In McLoughlin, -v- O'Brian, Lord Russell used the phrase "mental trauma". In Brice -v- BrowE 7 Stuart-Smith J. described it as "a convenient phrase to describe mental injury or psychiatric illness to distinguish it from, on the one hand, grief and sorrow and, on the other, physical or organic injury. The psychiatric injury does not

50