Nervous Shock I
The law allows recovery of damages for so called nervous shock, within certain parameters and subject to limitations. Nervous shock is the most commonly used legal label for psychiatric or psychological injury. Psychiatric injuries include depression, posttraumatic stress disorder, psychosomatic pain, anxiety and panic attacks. In this context the normal mitigation rule apply.
Psychiatric injury may follow from physical injury. In this case, there is no bar to or controversy about recovery. Generally, once there is a physical injury which has been caused by breach of the claimant’s duty of care all ensuing loss that arises in consequence may be recovered, subject to the principles of remoteness.
The so-called eggshell rule requires the defendant to take the claimant as he finds him. Therefore, if the claimant suffers psychiatric or psychological trauma as a result of an incident causing personal injury, damages may be recovered, where it follows from the physical injury.
The cases on nervous shock, typically involve a psychiatric injury arising from a traumatic event, usually an accident caused by the defendant’s negligence. Commonly, there has been a collision or event, which has involved horrific physical injuries. It may in some contexts, be described as post-traumatic (stress) disorder.
Nervous Shock II
The injury must be capable of being classified as a psychological or psychiatric injury. Mental distress falling short of psychological or psychiatric illness or injury does not give rise to liability. The loss or damage must be a quantifiable diagnosable condition. It is not merely injury to feelings or “shock”, in the ordinary everyday sense.
There is no recovery for mere distress, emotional upset or shock. Severe shaking up is not sufficient. In an action against a psychologist for failure to identify dyslexia, the House of Lords accepted that dyslexia could in principle amount to quantifiable damage.
Difficult issues of causation may arise in this area. A person may have a predisposition to a psychiatric illness. It must be shown that the incident concerned, caused or increased the symptoms in a significant way.
The foreseeability of nervous shock has been one of the principal obstacles to a successful claim. The degree of proximity between the claimant and the defendant must be such that the defendant owed the claimant a duty of care, not to cause nervous shock.
Limits on Liability / Recovery
The law allows recovery of damages for negligently induced nervous shock, unaccompanied by physical injuries within limits. The scope of liability has been the subject of differing approaches in judicial decisions. may the or posttraumatic stress is a psychological injury for which the law allows The claimant must suffer from a recognizable psychiatric illness.
Cases of nervous shock typically involve persons witnessing, coming upon or being informed of a horrific accident or incident. Commonly (although not necessarily) close relatives have suffered severe and traumatic injury. The claimant may have witnessed the traumatic event directly, come upon its immediate aftermath or learned of it in some way.
The claimant must have suffered a medically recognizable psychiatric /psychological illness. The illness must be shown to be induced by the traumatic event. This event must have been caused by the defendant’s omission. The shock sustained must be by reason of actual or apprehended physical injury to the claimant or a person other than the claimant.
The claimant must prove that the defendant owed him a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock.
The duty must be showed to be owned to the claimant, the secondary victim. There must exist sufficient connection between the primary and secondary victim. The secondary victim may be a relative. He may also be a rescuer, firefighter, police officer etc. who might foreseeably come upon the scene.
The courts have been more reluctant to extend liability to random bystanders, who would not ordinarily be in the range of foreseeability or whose presence could not be predicted. This is less of an issue if the circumstances are particularly horrific.
A reasonable foreseeability of personal injury only is not enough. In considering the existence of duty to persons other than the primary victim, third parties may expected to have normal fortitude. Where they are reasonably foreseeable, the extent of damages will be determined under the eggshell skull principle. It is sufficient that the person should foresee that his conduct might give rise to some foreseeable psychiatric illness.
Developments in the UK
In an early English case in the 1940s, a witness to a motorbike accident some distance away was unable to recover. She was outside the area in which injury was deemed to be foreseeable. The issue reached the House of Lords again in the early 1980s during the high point of the expansive view of negligence. In this case, a spouse learned of a horrific accident in which her husband and three children were involved. An hour later she went to a hospital and was exposed to a traumatic scene, which caused her severe psychiatric illness.
The leading judgment in the House of Lords identified three relevant elements, the class of claimant whose claims should be recognised, the proximity of such persons to the accident and the means by which psychiatric illness was caused.
The class of persons could include ordinary bystanders and those with close family ties. Ordinary bystanders were expected to have reasonable fortitude. Compensating them would potentially open the floodgates. On the other hand, close family members might recover.
The House of Lords indicated that there must be some close connection in space and time between the accident and the traumatic event. It is sufficient under the so-called “aftermath doctrine” that the person comes upon the scene relatively quickly. A parent or spouse coming upon the scene was foreseeable.
Primary and Secondary Victims
In the UK, a distinction has been drawn between primary victims and secondary victims. Primary victims are those directly affected and are involved in the incident. Secondary victims are at one step remove and typically come on the aftermath of the incident. They do not participate in the event, but are injured as a consequence. The distinction between primary and secondary victims has been criticised.
There must be an actual physical injury or at least the apprehension of a physical injury on the part of the primary victim. The possibility of injury to the primary victim is not enough. It is enough if the physical injury has occurred or if it was expected to occur at the relevant time. There must be a rationally apprehended injury. It is not enough that a person apprehends the possibility of a serious injury, for example from exposure to toxins.
The claimant must have a close and proximate relationship with the injured person. He must witness or at least hear of the traumatic event very soon afterwards.The shock must be due from the observance of the event and/or learning about it shortly after it happened. The illness must be shock induced. An injury arising gradually does not suffice for this purpose.
Hillsborough Cases
In 1991 a further case came before the House of Lords, arising from the notorious Hillsborough disaster in which 95 spectators were crushed to death. Horrific scenes were televised live. The House of Lords considered that it was necessary to show that the illness suffered was reasonably foreseeable, that there was a relationship of proximity between the claimant and defendant that was sufficiently proximate.
The class of claimant who could recover was not limited to particular relationships, but it did need to be based on ties of affection and love. It is necessary to show proximity in time and space between the event and its immediate aftermath.
The House of Lords distinguished between claimants who are participants and those who are passive and unwilling witnesses. The latter were primary victims involved in the incident or accident and within the reasonable range of foreseeability. Secondary victims, such as bystanders and other spectators were not.
The mere fact of presence at the match, was of itself insufficient, even in the case of friends and more distant relations. In relation to secondary victims, the medium through which the psychiatric is inflicted, may be relevant.
In the case of primary victims, liability was determined by reference to whether a physical injury was foreseeable, liability for psychiatric injury would follow. Foreseeability of psychiatric injury was an essential element in respect of secondary victims. Accordingly, in England and Wales, there is a distinction between primary and secondary victims.
Liability was not established by relatives who watched the Hillsborough disaster on television, as the events occurred. Similarly, a wife who suffered psychiatric injury after a doctor told her of her husband’s death in an accident, was not a foreseeable secondary victim.
In the case of primary victims, fellow employees were not deemed foreseeable, where they witnessed an employee die in horrific circumstances due to a work accident.
The psychiatric condition must follow from viewing the traumatic scene. Where if follows from grief caused by the loss of a loved one, it is insufficient.
Non-Accident Context
An employer owes a duty to provide a safe system of work. This extends to psychiatric as well as physical injury. The injury must be foreseeable. The employer is not obliged to prevent wholly unexpected events that could lead to nervous shock. There must be circumstances which come to the employer’s attention from which the risk of nervous shock and psychiatric injury might be apprehended.
In an English case in 2004, damages were sought for psychiatric injury, alleged to result from a solicitor’s negligent conduct of a defence leading to conviction and imprisonment. The Court of Appeal held that a duty was owed to the claimant personally and that the test for psychiatric illness had been reasonably foreseeable.
It was indicated that the control mechanisms to limit the incidence of psychiatric injury were not appropriate to a relationship based in contract. The court approached the question of liability with reference to whether it was fair and reasonable to impose liability.
In a further case, a claim was allowed in principle for parents who suffered nervous shock, after becoming aware of the retention of deceased children’s organs without knowledge or consent. This was based on there being a doctor-patient relationship between the parents and the doctors, which was breached by not obtaining consent
Irish Developments
The courts do not place limitations on compensation for diagnosable psychiatric illnesses which follow from physical injury. This chapter is principally concerned with psychiatric injury arising in itself without physical injury and which does follow from or arise as a consequence of physical injury.
In some cases, shock may arise from a near miss or real fear of physical injury. This was recognised early in the development of the law. There followed recognition of liability in situations where a person’s immediate fear was not for himself, but for his children or close relatives. Later there followed the possibility of liability where the traumatic event happened to a co-worker.
There were two early Irish cases in the late 19th century, where plaintiffs who suffered “near miss” episodes in railway yards involving escaping locomotives and who had been in physical danger, received compensation for nervous shock.
UK Approach Upheld in Ireland
The Irish courts have upheld the broad approach of the England and Wales courts in relation to nervous shock. In Kelly v. Hennessey in 1995 the Chief Justice identified the following requirements for a claim for nervous shock;
- the plaintiff must establish that he or she has a recognisable psychiatric illness which has been shock-induced;
- It must be caused by the defendant’s act or omission;
- The nervous shock must have arisen by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff.
- The plaintiff must show the defendant owed him a duty of care not to cause a reasonable foreseeable injury, in the form of nervous shock.
The Chief Justice indicated that the relationship between the plaintiff and person injured must be close, echoing the English approach. Another judge considered the proximity of the relationship between the primary and secondary victim to be critical. In the particular case, the claimant had seen the aftermath of the accident relatively shortly after the accident.
In Ireland, some judges have adhered to the primary/secondary victim distinction recognised in the United Kingdom, while others have not done so.
The Irish courts have allowed recovery for nervous shock, where a contentious wall was demolished within earshot by a person known to have previously been admitted for psychiatric treatment. The victim was in distress and anxiety because of her perception that the demolition of the wall put an infant child at imminent risk. The case satisfied the test for nervous shock.
The injury must be a recognisable psychiatric illness. A person who was informed he had succeeded in exams and was later told he had failed could not occur for psychological distress thereby caused
The status of this primary/secondary victim distinct is not established in Ireland in the same manner as England.
Fear of Disease
A number of cases in Ireland have been taken in relation to so-called fear of disease. Where a person suffered mental shock on account of being told that he had some risk of a serious future illness, the High Court was willing in principle to find the person who caused the initial illness or injury liable for nervous shock.
The Supreme Court unanimously reversed the decision. The Chief Justice with whom several judges agreed, held that the risk was not foreseeable by the defendant in the circumstances. Liability has been imposed in similar English cases, where the injury was held to be foreseeable in the circumstance.
The Supreme Court was willing in principle to recognise that a person could suffer a recognisable psychiatric disorder as a result of taking medical advice and being informed he was at risk of a serious disease, even though he had not contracted this. The extent of the risk does not matter in principle, nor would the fact that a person with ordinary fortitude might withstand the risk. The eggshell rule would be applicable, in principle.
The Chief Justice in effect employed policy reasons to refuse recovery. It was undesirable to compensate plaintiffs whose psychiatric condition was used solely through unfounded fear. The implications for the healthcare field will be significant. In essence, the claimant’s fear was irrational. Accordingly, recovery has been possible in principle in the same manner as in England, it has been based on the eggshell rule. The context of psychiatric illness, although it appears in principle that it applies.
The courts have allowed recovery in an employment context for post-traumatic stress disorder by reason of the absence of proper counselling and a safe system of work.
Employment Stress Induced Injury
The Irish High Court has accepted that there may be liability for stress-induced psychiatric injury. There are no special control mechanisms applying to claims for psychiatric or physical injury arising from stress # work the employee is required to do. The principal question is whether the type of harm to the particular employee was reasonably foreseeable.The breach of duty must cause the loss.
The threshold question is whether this kind of harm to the particular employee was reasonably foreseeable. There may be an injury to health assessing from occupational stress or injury attributable to stress at work.
Foreseeability depends on what the employer knows or ought to know about the individual employee. It is harder to foresee than physical injury.
The same test applies to employment. Factors include the nature and extent of the work done, workload intellectually or emotionally, signs of stress manifesting themselves, signs of impending harm to health, particular vulnerability.
The employer is generally entitled to accept what the employee says at face value. The implications must be plain enough to a reasonable employer to realise he must do something about it. He must take steps reasonable in the circumstances. This depends on the risk caused, the magnitude of circumstances, gravity, size of employers, operation resources may be the only option, counselling may be appropriate.
