The Gazette 1990

GAZETTE

j A nua R y/february

1990

seeing the serious consequences of his injuries. There, Comyn J. said "There is no use in having views unless one is prepared to state them boldly and I do strongly hold the view that the law is harsh in making worry, strain and stress wholly irrecoverable as a head of damage in a case such as this . . . I hold that the shock she suffered and the shock she suffered (a) on her own behalf and (b) on her hus- band's behalf was shock in the or- dinary, general, everyday meaning of the word and not in any medical or psychiatric sense". Never- theless, he awarded her com- pensation. In Brooks -v- Wessex Regional Health Authority 27 a woman gave birth to a severely retarded baby who lived and whom she commenced to look after in her own home. A claim for damages was brought both on behalf of the child and on her own behalf. Her claim included a claim for damages for shock. There was apparently no suggestion of any psychiatric il- lness or anything other than the natural upset and strain of such a situation. Indeed, the report would suggest that the woman was an extremely well balanced and caring person. The Judge recited the dis- tinction between grief and sorrow on the one hand and nervous shock on the other, and then went on to award the Plaintiff damages under the latter heading. The concept of what can and what cannot be compensated has not been very clearly defined in Ireland. Thus, in Cosgrove -v- Ireland 28 the Plaintiff recovered damages for mental distress and anxiety caused by deprivation of constitutional and statutory rights. In Whe/an -v- Madigan 29 a tenant recovered damages for mental dis- tress and shock inflicted as a result of a landlord's trespass. Four recent English cases demon- strate the extent to which English Law has now developed. In Gait - v- British Railways Board [1983], 30 a train driver driving his train around a bend at speed, suddenly came upon workmen on the line. There was no lookout man, as the defend- ants' regulations required. The Plaintiff blew the horn repeatedly, but it was only when he was six or seven yards away from them that they got out of the way. He thought he was going to hit them and suf- fered nervous shock which brought

transverse position. The Defendant attempted to turn it manually with- out administering an anaesthetic to the Plaintiff. This treatment was described by a professor of gynae- cology in evidence, as "horrific and completely unacceptable and must have caused the Plaintiff excruci- ating pain". The Plaintiff was con- scious during all of this but later underwent caesarean section for delivery of the second twin. When she was in post-natal recovery she was told that the second twin was a bit poorly and had been taken to another hospital. Later she was told that he had in fact died but had been resuscitated after about 20 minutes. She saw him two days later. He was in an incubator and was convulsing, twisting and would not cry, suck or swallow. She was told that if he survived, he would be a vegetable. Eight weeks later he died. The Plaintiff said in evidence that she felt devastated and guilty because she had hoped the child would die and the guilt would be with her all her days. She was also terrified of having another child. Although there is no doubt that the Plaintiff suffered dreadful emotional distress including grief, guilt and worry, there was apparently no psychiatric evidence of nervous shock. Woolf J. (as he then was) held that the Plaintiff was entitled to damages for "the shock she undoubtedly suffered as a result of being told what happened to Daniel and of seeing him during her visits".

on a heart attack (which he surviv- ed). Tudor-Evans J. held: - (a) that the workmen owed a du- ty of care to get off the line not only to the driver but also to the public, (b) that the risk of injury by ner- vous shock 'to the driver was in such circumstances foresee- able and the Defendants owed the Plaintiff a duty of care not to expose him to injury by ner- vous shock in such circum- stances, ( c) the coronary attack conse- quent on the nervous shock came within the egg shell skull principle and the Defendants were liable for that also. In Ibrahim (a minor) -v- Muham- mad [1984], 31 young Tayfun Ibrahim when five years of age, underwent an operation to be cir- cumcised in accordance with the Moslem religion. The Defendant who was a doctor, carried out the operation. In accordance with tradi- tion, a big hall was hired for a party and 200/250 people were invited. After the party had started, the young boy was taken home by his mother so that the Defendant could carry out the circumcision. The parents and various family friends were present. The father was operating a cine camera. The mother stepped out but was just around a door. The Defendant then invoked the name of a deity and was seen to carry out a slashing movement. The boy screamed. The mother ran in to discover that blood was spouting from his penis, about half of which the Defendant had cut off. There followed a dash to the hospital and days of waiting to find out if the operation to re-attach the severed part was successful (it transpired in medical terms to be a success). The reader familiar with awards in the Irish Courts, will be surprised to note that for this injury and added psychological sequelae which I have not detailed, the poor infant was awarded a mere £10,000 damages and the parents £3,000 each for nervous shock! A most instructive case is that of Kralj -v- McGrath [1985]. 32 In that case, the Plaintiff was expecting twins and Mr. McGrath was her gynaecologist. She was a private patient and, accordingly, there was a contractual relationship between them. The first twin was born nor- mally but the second twin was in a

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