Nervous Shock - CASE LIST

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Nervous Shock - Pure Psychiatric Injury

Zone of Danger

Byrne v Southern and Western Railway - sitting in waiting room and train crashed through it - did not suffer harm - able to sue for nervous shock - placed in imminent danger of foreseeable injury by negligence of defendant.

Expansion beyond the zone of danger...

Hanbrook v Stokes - truck rolled down hill and crashed where plaintiffs daughter was - she thought she was hurt or killed - she was not in the zone of danger - allowed recovery for nervous shock for such close family ties as this.

McLoughlin v O'Brien - plaintiff's family were in an accident a she discovered them in a horrifying state in hospital - entitled to compensation - the rule for a secondary victim are (1) injury must be a recognised psychiatric illness (2) illness must be reasonably foreseeable (3) proximity must exist.

Proximity in this case includes - (1) proximity of relationship - closer the family tie (or care) the better the proximity - (2) proximity in time and space (3) communication of the shock - sight or hearing of the accident or its immediate aftermath.

Requirements:

Plaintiff must prove the following - (1) recognised psychiatric illness (2) reasonably foreseeable injury (3) close connection with victim (4) witnessed the incident or its immediate aftermath (5) shock was caused by witnessing it.

Alcock v South Yorkshire Police - families of hillsborough victims could not recover - controls placed on the existence of duty of care - (1) secondary victim must perceive a shocking event or aftermath (2) shock must be sudden, not gradual (3) if the shock is by seeing harm to another, the plaintiff must have a proximate relationship to them (4) must be reasonably foreseeable that a person of normal fortitude would suffer psychiatric damage in the circumstances.

Bystanders and Rescuers

Mulally v Bus Éireann - Plaintiff's family were injured in bus accident - plaintiff suffered PTSD - was the injury to the plaintiff reasonable foreseeable to the reasonable man? The court said yes - she was allowed to recover in nervous shock.

UK is more reticent to allow recovery for pure psychiatric injury -

McFarlane v Caledonia - plaintiff could not recover under nervous shock where he witnessed a boat fire but knew none of the victims.

White v Chief Constable of South Yorkshire - policemen who attended hillsborough disaster could not recover - akin to family.

Ireland is more in favour of allowing pure psychiatric injury recovery...

Kelly v Hennessy - plaintiff arrived at hospital to see family in state - suffered psychiatric harm - elements to be established for nervous shock in Ireland - (1) suffered recognised psychiatric illness - (2) illness must be shock induced (3) nervous shock must be caused by defendants act or omission (4) nervous shock by reason of actual or apprehended physical injury to self or another - (5) defendant owed a duty of care not to cause a reasonably foreseeable injury in the form of nervous shock.

Curran v Cadbury - employee though she had killed or injured fellow employee by locking in machine and turning it on - there was no kill switch - employer liable in nervous shock as they failed in their duty to have a kill-switch.

Fletcher v Commissioner for Public Works - applied Kelly v Hennessy - rejected Mulally - plaintiff was sad and angry after being told that there was a very slight chance he may have suffered asbestos poisoning - he did not suffer a shock - psychiatric illness existed, but not from nervous shock.

Devlin and Anor v National Maternity Hospital - organs of deceased child kept without parent's permission - failed to establish that shock was caused by actual or apprehended physical harm to them or another - claim failed -

SC v Minister for Health - plaintiff's father died after being given blood contaminated with Hepatitis C - plaintiff witnessed horrific pain and suffering in the weeks before his father's death - he was able to recover under nervous shock even though there was no sudden or shocking occurrence.

DJ v Minister for Health - facts akin to SC case above - mother killed by infected blood - on (1) recognised psychiatric illness - injury was question for the court based on evidence - if expert evidence showed then court would agree and (2) on shock induced, what constitutes shock must be considered subjectively - here, the vulnerability of the plaintiff meant that the shock occurred.

Sheehan v Bus Éireann - person found aftermath of bus and car crash - decapitated body of victim and bloody bus driver - developed PTSD and had to stop working - able to recover under nervous shock as a rescuer / bystander.

Recognised Psychiatric Injury

Larkin v Dublin City Council - told he was accepted for job - was not correct - suffered serious disappointment and upset - this was not enough.

Walter v Crossan - requirement of a recognised psychiatric injury,

Murray v Budds - being worried and stressed after you appointed a barrister very late in the day was not enough to satisfy the requirement.