Kelly v Hennessy

JurisdictionIreland
JudgeHamilton C.J.,MRS. JUSTICE DENHAM
Judgment Date01 January 1996
Neutral Citation[1995] IESC 8
CourtSupreme Court
Docket Number159/93,[S.C. No. 159 of 1993]
Date01 January 1996
KELLY v. HENNESSY

BETWEEN:

ANNE KELLY
Plaintiff/Respondent

and

FERGUS HENNESSY
Defendant/Appellant

[1995] IESC 8

HAMILTON C.J.

EGAN J.

DENHAM J.

159/93

THE SUPREME COURT

Synopsis:

ACTION

Cause

Damage - Remoteness - Foreseeability - Wife - Nervous shock - Traffic accident - Personal injuries - Husband and daughters injured - Gruesome injuries - Brain damage - Traumatic experience of wife - Personality change - Post-traumatic stress disorder - Plaintiff wife entitled to damages - Public policy - (159/93 - Supreme Court - 28/11/95) - [1995] 3 IR 253 - [1996] 1 ILRM 321

|Kelly v. Hennessy|

NEGLIGENCE

Damage

Remoteness - Motorist - Collision - Results - Personal injuries - Plaintiff's husband and daughter severely injured - Nervous shock, depression and personality change of plaintiff - Post-traumatic stress disorder - (159/93 - Supreme Court - 28/11/95)1995 3 IR 253

|Kelly v. Hennessy|

DAMAGES

Assessment

Nervous shock - Accident - Personal injuries - Husband and daughters - Plaintiff wife - Post-traumatic stress disorder - Traffic accident - Gruesome injuries of husband and daughters - Depression and personality change of plaintiff - Future general damages reduced on appeal - (159/93 - Supreme Court - 28/11/95)1995 3 IR 253

|Kelly v. Hennessy|

Citations:

MCLOUGHLIN V O'BRIEN 1982 2 AER 298, 1983 AC 410

JAENSCH V COFFEY 155 CLR 540

DONOGHUE V STEVENSON 1932 AC 562

HAY V O'GRADY 1992 1 IR 210

ABERDEEN GLEN LINE STEAMSHIP CO V MACKEN 1899 2 IR 1

DPP, PEOPLE V MADDEN 1977 IR 336

MULLALLY V BUS EIREANN 1992 ILRM 722

BYRNE V GREAT SOUTHERN & WESTERN RAILWAY CO OF IRELAND UNREP COURT OF APPEAL FEB 1884

BELL V GREAT NORTHERN RAILWAY CO OF IRELAND 1890–1891 26 LRI 428

HINZ V BERRY 1970 2 QB 40

1

28th day of November1995by Hamilton C.J.

Hamilton C.J.
2

The facts relevant to the appeal and findings of fact in relation thereto made by the learned High Court Judge are set forth in detail in the judgment about to be delivered by Denham J. and it is not necessary for me to set them forth in the course of this judgment.

3

As appears therefrom, the Plaintiff/Respondent (hereinafter referred to as the Respondent) had claimedagainst the Defendant/Appellant (hereinafter referred to as the Appellant) damages for nervous shock and for emotional and psychological distress which she alleged was caused by the negligence and breach of duty of the Appellant in the driving of a motor vehicle on the 14th day of April 1987 which was involved in a collision as a result of which the Respondent's husband and two daughters suffered severe personalinjuries.

4

The Respondent was not involved in the collision but shortly after 9.30 p.m. on that evening was informed by her niece of the fact of the collision and that her husband and two daughters were seriously injuredtherein.

5

The learned trial judge found that

6

2 (i) the Respondent immediately went into shock, became upset and commenced vomiting;

7

3 (ii) while being brought to Jervis Street Hospital, to which hospital her husband and two daughters had been brought, by neighbours, she became ill during the course of the journey;

8

4 (iii) while in hospital she saw each member of thefamily, each of whom was in an appalling condition;

9

5 (iv) the Respondent has from that time led, what the learned trial judge described as, a traumatised existence;

10

6 (v) the Respondent had suffered immediate nervous shock resulting in vomiting on receiving the telephone call concerning the accident and that this condition was gravely aggravated by the scenes she immediately thereafter witnessed in Jervis Street Hospital;

11

7 (vi) the post-traumatic stress disorder continued up to 1992 at the earliest and she continues to suffer a serious depression;

12

8 (vii) he was not satisfied, having regard to all the evidence, that the Respondent will ever fully recover from what he perceived to be a clear psychiatric illness, and

13

9 (viii) the Appellant had not established on the balance of probability that, because the Respondent has refused to acknowledge her pain grief and depression, she should be found guilty of a failure to mitigate her damages.

14

On the basis of such findings the learned trial judge, held that the Respondent was entitled to recoveras against the Appellant damages for nervous shock and assessed damages in the sum of £35,000 for the past and £40,000 for thefuture.

15

The Appellant has appealed against the judgment and order of the learned trial judge on the grounds that the learned trial judge had erred in law and in fact in holding that:-

16

(i) the Appellant owed a duty to the Respondent;

17

(ii) the injury (if any) suffered by the Respondent was caused by the accident;

18

(iii) the Respondent suffered nervous shock and post traumatic stress disorder;

19

(iv) the Respondent had a depressive illness at the date of thehearing;

20

(v) failing to hold that the injury (if any) suffered by the Respondent was too remote;

21

(vi) the Respondent was entitled to compensation for the future having regard to the evidence that the Respondent would recover if she obtained the appropriate treatment and failing to hold that the Respondent had failed to mitigate her loss;

22

i (vii) the award of £35,000 was excessive and againstthe weight of the evidence.

23

In the course of his judgment in McLoughlin v. O'Brien 1982 2 A.E.R. 298 (hereinafter referred to as McLoughlin's case) Lord Wilberforce stated:-

"While damages cannot, at common law, be awarded for grief and sorrow, a claim for damages for nervous shock caused by negligence can be made without the necessity of showing direct impact or fear of immediate personal injuries for oneself."

24

The cases seem to establish that in order to succeed in an action for damages for nervous shock a Plaintiff must establish thefollowing:-

25

1. The Plaintiff must establish that he or she actually suffered 'nervous shock'. This term has been-used to describe "anyrecognisable psychiatric illness" and a plaintiff must prove that he or she suffered a recognisable psychiatric illness if he or she is to recover damages for 'nervous shock'.

26

In this case it was found by the learned trial judge that the Respondent did suffer the psychiatric illness of Post-Traumatic stress disorder andsuchfinding was accepted by Counsel on behalf of the Appellant. Consequently, the Respondent had discharged her onus in that regard.

27

2. A plaintiff must establish that his or her recognisable psychiatric illness was "shock induced".

28

This principle was enunciated in the Australian case of Jaenschv. Coffey 155 C.L.R. 540, by Brennan J. as follows:-

"A plaintiff may recover only if the psychiatric illness is the result of physical injury inflicted on him by the Defendant or if it is induced by shock. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant's carelessness."

29

Brennan J. gave two examples where there would be no recovery:

"The spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result goes without compensation: a parent made distraught by the wayward conduct of a brain damaged childand who suffers psychiatric illness as a result has no claim against the tort feasor liable to the child."

30

Counsel on behalf of the Appellant herein, while conceding that the Respondent suffered from a posttraumatic stress disorder, submitted that this condition was not caused by the shock of hearing of the collision and learning of and seeing the condition of the injured members of her family but by the self-induced strain of caring for her husband and daughter and consequently was not sufficiently proximate to the negligence of the Appellant.

31

This submission will be dealt with by me at a later stage.

32

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

33

There is no doubt having regard to the findings of the learned trial judge but that the Respondent herein has established that the nervous shock suffered by her was due to the Defendant's negligence. She has clearly established that the circumstances of the accident andthe appalling injuries suffered therein by her husband and two daughters caused or materially contributed to the nervous shock.

34

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.

35

This view was clearly expressed by Deane J. in Jaensch v.Coffer as being the present state of the law when he said that a duty of care (and hence liability for nervous shock) will not exist unless 'the reasonably foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than the person whose carelessness caused the injury".

36

The Respondent has established that the nervous shock sustained by her was by reason of the appalling injuries sustained by her husband and two daughters which were caused by the negligence of the Appellant and which she saw on the occasion of her visit to Jervis Street Hospital andsubsequently.

37

5. If a Plaintiff wishes to recover damages fornegligently inflicted nervous shock he must show that the defendant owed him or her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock.

38

It is not enough to show that there was a reasonably foreseeable risk of personal injury generally. Deane J. stated in Jaensch v.Coffer, already cited, that:-

"a duty of care will not arise unless risk of injury in that particular form (i.e. psychiatric injury unassociated with conventional physical injury) was reasonably foreseeable."

39

Though the issue of foreseeability was not an issue argued in the course of this appeal, it is relevant in the context of...

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