The Gazette 1990

GAZETTE

MARCH 1990

have to have any particular label or term of art applied to it. Used in the sense which I have indicated the Plaintiff in my judgment has to establish three things: firstly that the circumstances of the accident caused or materially contributed to the nervous shock; secondly that the nervous shock was reasonably foreseeable by the tortfeasor as a [reasonable forasaeability] . . . " natural and probable consequence of a breach of his duty of care. For this purpose the Plaintiff is assum- ed to be a person of normal dis- position and phlegm this would exclude the pursuer in Hay (or Bournhill) -v- Young as a person who faints at the sight of a road accident no matter who is involved. And, thirdly, that once the first two matters are established the Plaintiff is entitled to compensation for ner- vous shock and such of its conse- quences as were not dissimilar in kind, whether or not the same were initially reasonably to be foreseen". In one of the latest cases on the subject Attia -v- British Gas 18 Bingham L. J. described it as "a misleading and inaccurate ex- pression" and instead used the general expression "psychiatric damage" intending to comprehend within it "all relevant forms of mental illness, neurosis and personality change". One finds it hard to justify the distinction between recoverability of damages for nervous shock and non-recoverability for grief, sorrow or emotional distress. There is no sharp dividing line between deep emotional distress and nervous shock. In certain cases (for example assault, defamation), we permit the recovery of aggravated damages for humiliation and injury to feelings - reactions much milder than grief or emotional distress. Likewise, if a bride can get damages for distress and disappointment because she had no pictures of her wedding day 19 or if a holidaymaker can get damages for distress and dis- appointment because he didn't have the "great time" he was promised; 20 if an investor who was deceived into buying shares in a company that are not the vendor's to sell can get aggravated damages for his injured feelings; 21 if a per- " . . . the Plaintiff has to establish [causa] . . . and

son who suffers great personal strain as a result of his Solicitor's negligence in a property trans- action can get damages for this 22 and if as is becoming common- place, a person directly injured by a wrongful act can get compensa- tion for depression, it is a bit hard to see why the genuine and fore- seeable grief and worry of a near relative should not form the subject of damages. Surely the distinction ought to be relevant only to the size of the award? It was two Irish cases that first established a cause of action for nervous shock and lead the way for English Courts that had already decided that such claims unaccom- panied by physical injury were inadmissible. In Victoria Railways Commissioners -v- Cou/tas 23 the Plaintiff, a pregnant lady who was a passenger in a buggy, suffered a severe nervous shock which caused her to faint and miscarry when a negligent gate keeper allowed the buggy to cross the line and it was narrowly missed by a train. The Privy Council clearly affected by the floodgates argu- ment, reversed the inferior Courts award of damages and dismissed the claim. However, in Byrne -v- Great Southern and Western Railway Company 24 the Irish Court of Appeal had awarded damages for "It was two Irish cases that first established a cause of action for nervous shock nervous shock to a telegraph super- intendant whose office had been struck by a train, and in Bell -v- Great Northern Railway Com- pany 25 (decided after the Victoria Railways case) a passenger was awarded damages for nervous shock sustained when a carriage became unhooked and rolled down a hill. In that case, Murphy J., discussing what the damages could be awarded for, said that it was immaterial what name was given to the injuries. "The only questions to be considered, in my opinion, are: was the health or capacity of the Plaintiff for the discharge of her duties and enjoy- ment of life affected by what occurred to her whilst in the carriage?" Next, was this caused by the negligence of the Defend- ants?" One would hope that using

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this enlightened approach, Irish Courts would refuse to consider themselves confined to nervous shock and unable to compensate Plaintiffs for emotional distress, worry and grief. For example, a mother who sees her young child run down and suffer life threatening injuries might suffer great emot- ional distress and worry particularly if the treatment is prolonged or involves many surgical procedures. Indeed, she may have to witness for the rest of her life her child growing up disabled or physically deformed. Is she to be denied com- pensation merely because her injuries are not sufficiently severe to fall into the category of nervous shock? Indeed, in Britain there are grow- ing signs of unease with this arbitrary rule. Thus, in Whitmore -v- Auto Transposes Julia S.A. 26 the Plaintiff and her husband were injured coming home from Spain in a bus crash in France. The husband was seriously injured. The wife claimed damages for shock as a result of seeing him injured and

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