The Gazette 1990

j A nua R y / february

1990

GAZETTE

4. Nervous shock to a person present at a wrongful act who apprehends injury to another person, (a) spouse and child- ren, 38 (b) fellow workers. 39 5. Nervous shock to person present at a wrongful act who apprehends damage to proper- ty. See Attia -v- British Gas J 8 6. Nervous shock to a person present at a wrongful act who witnesses a ghastly spectacle (other than injury to person or the consequences therof). See Owens -v- Liverpool Corpora- tion (40) - where a hearse containing a relative's coffin overturned. 7. Nervous shock to a person who does not witness the wrongful act but hears of it later or sees its consequences, (a) rescuer cases; 41 (b) mother after caesarean. See Kralj -v- McGrath; 32 (c) mother going to scene of an accident and seeing injured son; 42 (d) mother/wife not at the scene, but seeing the consequences at a hospital. See McLoughlin - v- O'BrianJ (e) mother who heard from her husband that two of her child- ren had been killed in a crash; 43 (f) wife who heard in hospital of her husband's death. See Schneider -v- Eisovitch. 12 THE FUTURE? In the light of modern case law, the drawing of an arbitrary line be- tween grief and nervous shock which denies the recovery of damages for grief, anxiety and emotional distress but permits recovery for nervous shock, seems to be totally unreal. We are told that this is a distinction embedded in the common law. If it ever was embedded (and the paucity of authority would appear to cast doubt on that), it is clear that such a principle does not for practical purposes exist in contract and in tort there are a number of specific instances where it does not appear to apply. Although McLoughlin -v- O'Brian has yet to be expressly approved by the Supreme Court, the principle that one can recover damages for nervous shock is firmly established in Irish law and it would be unlikely that the

She was not entitled to damages for grief and worry per se but in- sofar as that grief and worry ag- gravated her physical sufferings caused by the negligent attempts at delivery or prolonged her recovery from those injuries, it could be taken into account. Finally, it is worth considering an interesting case which occurred near the frontiers of the existing law on nervous shock. This was Attia -v- British Gas (1987) 18 . That case concerned a woman who claimed that she suffered nervous shock as a result of watching her house and contents being extensively burned in a fire that was caused by the Defendant's negligence. Thus, the Plaintiff had no apprehension of in- jury to herself or any other person - merely to her property. On a preliminary application by the Defendants, the High Court held that it was not reasonably foresee- able that the Plaintiff might suffer psychiatric illness as a result of watching her house and contents being burned in a fire started by the Defendant's negligence. The Court of Appeal, however, reversed that decision and held that it was a mat- ter of fact to be decided on the evidence whether or not such an injury was reasonably foreseeable. Woolf and Bingham L. J J . also held that there was no general rule of law that claims for damages for nervous shock were excluded where they related to witnessing or apprehending injury to property, rather than death or injury to per- son. Everything depended on its own facts. In relation to this case, it should be noted that the Defen- dant had a contractual relationship with the Plaintiff since they were carrying out works on her home, they clearly owed her a duty of care not to start a fire and could have foreseen the risk of some injury to her as she may have gone in to save her possessions or telephone the fire brigade. G E N E RAL P R I NC I P L ES From the above, some general prin- ciples can be deduced. 1. Nervous shock is invariably associated with both physical symptoms (shaking, crying, etc.) and mental symptoms (anxiety, depression, personali- ty change, neurosis, etc.) 2. Physical contact with the

wrongdoer is not necessary to recover damages. 3. The Plaintiff need not show that he himself was in danger of physical impact. 4. Injury by nervous shock to the Plaintiff, must be foreseeable to enable a Plaintiff to recover damages. 5. As a general rule, foreseeability of injury to the Plaintiff by ner- vous shock is sufficient for the recovery of damages. However, notwithstanding the fact that such injury is foreseeable, there are some cases where recovery will be denied on the basis of remoteness or policy considera- tions. 6. It is more likely that shock to a relative or close friend of the victim would be regarded as foreseeable, than shock to a total stranger. 7. Shock to a person who sees or hears an accident is normally regarded as foreseeable, pro- vided there is reasonable appre- hension of injury to himself or to his property or to a relative, friend or other person. 8. Shock to a rescuer who comes on the aftermath of an accident, is normally regarded as fore- seeable. C A S E S WHE RE T H E RE HAS BE EN RECOVERY Without in any way attempting to limit the scope of the doctrine of compensation for nervous shock, it may be helpful to classify the cases in which damages have been recovered. 1. Nervous shock associated with other physical injury to the direct victim of a wrongful act. Thousands of cases have been successfully brought under this heading. See especially Hogg - v- Keane [1956] I.R. 155. 2. Nervous shock only, to the direct victim of a wrongful act. 33 Cases which illustrate this classi- fication are Wilkinson -v- Downton, 34 Janvier -v- Sweeney, 35 and for an illustra- tion of a slander case where recovery was denied see A/lsop -v- A/lsop. 36 3. Nervous shock to a person present at a wrongful act who apprehends injury to himself. See Dulieu -v- White 31

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