Germaine v Day

• Jurisdiction: Ireland
• Judge: Ms. Justice Egan
• Judgment Date: 10 July 2024
• Neutral Citation: [2024] IEHC 420
• Court: High Court
• Docket Number: Record No. 2020 6621P

Between

Carmel Germaine

Plaintiff

and

Mary Day

Defendant

[2024] IEHC 420

Record No. 2020 6621P

THE HIGH COURT

Appearances

Declan Doyle SC, Alan Keating SC and Alannah McGurk BL for the plaintiff instructed by Michael Boylan LLP

Eoin McCullough SC and Rory White BL for the defendant instructed by the State Claims Agency

Judgment of Ms. Justice Egan delivered the 10 ^th day of July, 2024

Index

Introduction	2
Background Facts	3
Issues and Summary of the Court's findings	4
Criterion 1: Recognisable psychiatric illness	6
Criterion 2: Is the plaintiff's psychiatric illness shock-induced?	7
Legal principles	7
In the present case, what is the sudden shocking event?	10
Factual evidence and medical records	10
Expert evidence	11
Criterion 3: Was the plaintiff's nervous shock caused by a defendant's act or omission?	14
Criterion 4: Actual or apprehended injury	16
Criterion 5: Did the defendant owe the plaintiff a duty of care not to cause her a reasonably foreseeable injury in the form of nervous shock?	16
The requirement of a duty of care	16
Does the Glencar test govern the duty of care in nervous shock cases?	17
Broad explanation of the concepts of reasonable foreseeability and proximity	19
Foreseeability alone is not sufficient to establish duty of care	19
Are the different elements of the Glencar test satisfied in this case?	20
Reasonable Foreseeability	20
Different approaches to proximity	21
Proximity derived from an assumption of responsibility	21
Does proximity have a special meaning in the context of nervous shock?	24
Kelly v. Hennessy	25
Proximity post Kelly v. Hennessy	27
Causal proximity/Confluence of proximities	28
Assessment of proximity and duty of care in the present case	29
Fletcher analysis beyond Kelly v. Hennessy	33

Introduction

1 . This judgment concerns the intersection of the doctrine of nervous shock with medical negligence.

2 . The leading authority on nervous shock is Kelly v. Hennessy [1995] 3 IR 253. In that case, the plaintiff suffered post-traumatic stress disorder on being informed by telephone that her family members had just been seriously injured in a car crash and immediately afterwards saw each of them in an appalling condition in hospital. Hamilton C.J. set out the conditions that a plaintiff must satisfy to recover damages for nervous shock (“the Kelly v. Hennessy criteria”):

• 1. A plaintiff must establish that they suffered a recognisable psychiatric illness.

• 2. A plaintiff must establish that their recognisable psychiatric illness was shock-induced.

• 3. A plaintiff must prove that the nervous shock was caused by the defendant's act or omission.

• 4. The nervous shock sustained by a plaintiff must be by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff.

• 5. A plaintiff must show that the defendant owed them a duty of care not to cause them a reasonably foreseeable injury in the form of nervous shock 1.

3 . Although Kelly v. Hennessy arose out of a road traffic accident, it has been applied in a number of other contexts. Specifically, damages for nervous shock have been awarded to relatives who demonstrate that they have suffered a recognisable psychiatric illness by witnessing the injury or death of their loved one as a consequence of medical negligence. For example, in Courtney v. Our Lady's Hospital Ltd & Ors [2011] IEHC 226 (“ Courtney”), O'Neill J. awarded damages for nervous shock to the plaintiff who witnessed the death of her young daughter as a result of a negligent failure to diagnose meningitis. In Barry v. Health Service Executive [2015] IEHC 791, Barr J. awarded such damages in connection with the death of the plaintiff's former partner consequent upon a negligent failure to diagnose bowel cancer. Liability was not in issue in either case.

4 . In contrast, in Morrissey v. HSE [2019] IEHC 268, (“ Morrissey”) Cross J. determined that the negligent misreporting of Mrs. Morrissey's cervical smear did not give rise to recoverable nervous shock on the part of her husband because Kelly v. Hennessy criterion 5 was not satisfied. In Mitchell v. HSE [2023] IEHC 394, (“ Mitchell”), O'Connor J. declined to award damages in similar circumstances.

5 . This is the first medical negligence nervous shock case in which liability — specifically the fulfilment of several of the Kelly v. Hennessy criteria — has been in dispute. Kelly v. Hennessy criteria 2, 3 and 5 are all in issue for the first time. Morrissey and Mitchell both concerned the cervical screening program and the more general question of whether health care providers owe a criterion 5 duty of care to the relatives of their patients did not arise. This is also the first judgment in a relative's action for nervous shock in which, despite admitted breach of duty on the part of the health care provider, the patient in question has suffered no resulting injury.

Background Facts

6 . The plaintiff is the widow of the late Thomas Germain deceased (“the deceased”). The deceased suffered from a condition called organising pneumonitis which affected the upper lobe of his right lung. This was treated successfully, but the deceased remained under surveillance at St James's Hospital (whose interests the defendant represents) in case of relapse. The plaintiff accompanied her husband for a chest x-ray on 2 ^nd October, 2018, which was reported as normal. However, this chest x-ray showed an unrelated opacity in the right

lung, which was not initially picked up by the reporting radiologist. Had this opacity been reported and followed up clinically, the deceased would shortly have been diagnosed with lung cancer. Unfortunately, this did not occur and the deceased was informed by his treating consultant respiratory physician at St James's Hospital (“the consultant”) that his lung condition had resolved and he was charted for review in October 2019. Arising out of the foregoing, breach of duty of care to the deceased is admitted

7 . The deceased suffered a gradual deterioration in his health over the course of October, November and December 2018. However, it is common case that the deceased's cancer was already incurable in October 2018 and that an earlier diagnosis would not have led to any change in treatment or prognosis. The admitted breach of duty did not therefore cause injury to the deceased.

8 . The plaintiff pleads that on 23 ^rd December, 2018, she witnessed the deceased's rapid deterioration (consisting inter alia of significant difficulty mobilising, severe headache and inability to move his arms). After speaking with her daughter, the plaintiff persuaded the deceased to attend the Hermitage Clinic (“the Hermitage”) at 7:30 am on Christmas Eve. The deceased underwent tests and investigations and was diagnosed with high grade poorly differentiated non-small cell carcinoma.

9 . Although the deceased was initially discharged home, a family decision was made that it would be better if he was cared for in the Hermitage. The deceased was an inpatient in the Hermitage for several weeks during which time he commenced a course of radiotherapy. The deceased ultimately decided that he did not wish to avail of community palliative care and indicated a preference to remain in the Hermitage rather than in a hospice or at home. Accordingly, he remained in the Hermitage until his sad passing as a result of metastatic lung cancer on 14 ^th February, 2019. The plaintiff was not initially aware of her husband's terminal diagnosis as he “didn't tell [her]”. Rather, she discovered that her husband's illness was terminal towards the end of January 2019 which was very shortly before his death.

10 . The consultant wrote a letter to the deceased and to his general practitioner on 18 ^th February, 2019 but, on discovering the passing of the deceased re-addressed this letter to the plaintiff. This letter (“the open disclosure letter”), ultimately sent in April 2019, accepted that there had been a failure in the care provided, that the deceased's cancer should have been diagnosed in October 2018 and offered an unreserved apology.

Issues and Summary of the Court's findings

11 . It is accepted that the plaintiff suffered an adjustment disorder which is a recognisable psychiatric illness (as per Kelly v. Hennessy criterion 1). She contends that this is shock-induced (as per Kelly v. Hennessy criterion 2) as it resulted from witnessing the sudden and frightening deterioration of the deceased's condition (thus also satisfying criterion 4). The defendant maintains that what the plaintiff witnessed does not qualify as a sudden shocking event as required by criterion 2. It argues that this deterioration was part of a gradual arc of health decline; it was thus part of a continuum rather than constituting an “event” in itself.

12 . Vis a vis Kelly v. Hennessy criterion 3, the plaintiff argues that, if the deceased had been correctly diagnosed, she would have been spared the shock to which she was exposed. She submits that the deceased would have had the benefit of palliative care and all attendant supports. This would have either prevented the deterioration or prevented her from witnessing it. Alternatively, with the benefit of such supports, the plaintiff would have had an opportunity to come to terms with the deceased's predicament thereby avoiding the shock and trauma of his sudden deterioration. The plaintiff claims that all of this was denied to her by the defendant's admitted breach of duty. The defendant contends that these arguments are not supported by the evidence in the case.

13 . Finally, the plaintiff submits that criterion 5 is also satisfied because the defendant owed her a duty of care to avoid causing her foreseeable...