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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Kelly v. Hennessy  IESC 8;  3 IR 253;  1 ILRM 321 (28th November, 1995)
Cite as:  1 ILRM 321,  IESC 8,  3 IR 253
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appears therefrom, the plaintiff/respondent (hereinafter referred to as the
respondent) had claimed against 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 14 April
1987 which was involved in a collision as a result of which the
respondent’s husband and two daughters suffered severe personal injuries.
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 injured therein.
the basis of such findings the learned trial judge held that the respondent was
entitled to recover as against the appellant damages for nervous shock and
assessed damages in the sum of £35,000 for the past and £40,000 for
the future (see  ILRM 530).
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.
this case it was found by the learned trial judge that the respondent did
suffer the psychiatric illness of post-traumatic stress disorder and such
finding was accepted by counsel on behalf of the appellant. Consequently, the
respondent had discharged her onus in that regard.
principle was enunciated in the Australian case of
549, by Brennan J as follows (at p. 565):-
plaintiff may recover only if the psychiatric illness is the result of physical
injury inflicted on him by the defendant or if
induced by ‘shock’. Psychiatric illness caused in other ways
attracts no damages, though
reasonably foreseeable that psychiatric illness might be a consequence of 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 child and
who suffers psychiatric illness as a result has no claim against the tortfeasor
liable to the child.
on behalf of the appellant herein, while conceding that the respondent suffered
from a post-traumatic 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.
view was clearly expressed by Keane J in
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
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 and subsequently.
is not enough to show that there was a reasonably foreseeable risk of personal
injury generally. Deane J stated in
cited (at p. 604), that:-
the issue of foreseeability was not an issue argued in the course of this
appeal, it is relevant in the context of determining the nature of the duty
owed by the appellant to the respondent.
respondent, in this case, has established a chain of causation from the
appellant’s negligence in causing serious personal injuries, with
appalling consequences, to her husband and at least one of her daughters, to
her nervous shock and shock induced psychiatric illness.
was stated by Brennan J, now Chief Justice of Australia, in the case of
referred to (at p. 563)
is not necessary that the precise events leading to the administration of the
shock should be foreseeable. It is sufficient that shock and a psychiatric
illness induced by it are reasonably foreseeable.
is not necessary for a plaintiff to prove that a reasonable man in the
defendant’s position could foresee that any particular psychiatric
illness might be caused by his conduct; it suffices that he could have foreseen
that his conduct might cause some recognised psychiatric illness by shock.
judges, in all the decisions we have been referred to, have assumed that it lay
within their own competence to determine whether the plaintiff’s
‘nervous shock’ (as lawyers quaintly persist in calling it) was in
any given circumstances a sufficiently foreseeable consequence of the
defendant’s act or omission relied on as negligent to bring the plaintiff
within the scope of those to whom the defendant owed a duty of care.
present I content myself with pointing out that in English law there must be,
and is, some general conception of relations giving rise to a duty of care, of
which the particular cases found in the books are but instances. The liability
for negligence, whether you style it such or treat it as in other systems as a
no doubt based upon a general public sentiment of moral wrongdoing for which
the offender must pay. But acts or omissions which any moral code would censure
cannot in a practical world be treated so as to give a right to every person
injured by them to demand relief. In this way rules of law arise which limit
the range of complainants and the extent of their remedy. The rule that you are
to love your neighbour becomes in law, you must not injure your neighbour; and
the lawyer’s question, Who is my neighbour? receives a restricted reply.
You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, in law
is my neighbour? The answer seems to be - persons who are so closely and
directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question.
relationship between the plaintiff and the person injured must be close. As
stated by Gibbs CJ in
plaintiffs were able to recover damages for nervous shock which they suffered
as a result of injuries to members of their respective families which were not
inflicted in their sight or hearing, nevertheless both the House of Lords and
the High Court of Australia emphasised that the plaintiffs were present at, and
personally perceived the aftermath of the accident.
the House of Lords and the High Court of Australia held that it was sufficient
that the psychiatric illness which the plaintiffs suffered was as a result of
what the plaintiffs saw or heard in the aftermath of the accident at the scene
or even at the hospital where the injured relatives were taken as a result of
respondent’s ties with her husband and daughters could not be closer and
the effect of the learned trial judge’s judgment in this case is that the
nervous shock and psychiatric illness suffered by the respondent was caused to
her by what she learned in the phone call from her niece in the immediate
aftermath of the accident and what she heard and saw at the hospital
on behalf of the appellant, however, submitted that, while the respondent did
suffer nervous shock and a post-traumatic stress disorder and depression, such
post-traumatic stress disorder and depression was not caused in the aftermath
of the accident but by the events subsequent thereto, the grief and worry
caused by serious injuries to her husband and daughters, the constant visits to
the hospital and the strain imposed on her by the necessity to care for her
husband and daughter after their discharge from hospital.
in this case what policy should inhibit a decision in favour of liability to
the plaintiff? Negligent driving on the highway is only one form of negligence
which may cause wounding or death and thus induce a relevant mental trauma in a
person such as the plaintiff. There seems to be no policy requirement that the
damage to the plaintiff should be on or adjacent to the highway. In the last
analysis any policy consideration seems to be rooted in a fear of floodgates
opening, the tacit question: what next? I am not impressed by that fear –
certainly not sufficiently to deprive this plaintiff of just compensation for
the reasonably foreseeable damage done to her. I do not consider that such
deprivation is justified by trying to answer in advance the question posed
‘What next?’ by a consideration of relationships of plaintiff to
the sufferers or deceased, or other circumstances; to attempt in advance
solutions, or even guidelines, in hypothetical cases may well, it seems to me,
in this field, do more harm than good. I also would allow this appeal.
the course of the trial herein the learned trial judge heard the evidence of
the respondent and other witnesses, in particular, Dr. Michael Corry,
consultant psychiatrist, on behalf of the respondent, and Dr. John A. Ryan,
consultant psychiatrist on behalf of the appellant.
accept, therefore, that the plaintiff’s personality and her lifestyle has
been changed utterly by virtue of the events, the subject matter of this case.
I accept Dr. Corry’s evidence.
am, therefore, satisfied that the plaintiff suffered immediate nervous shock
resulting in vomiting on receiving the telephone call concerning her
family’s accident. This condition was, in my view, gravely aggravated by
scenes she immediately thereafter witnessed in Jervis Street Hospital.
am satisfied that the post-traumatic stress disorder which Dr. Corry has given
evidence of continued up to 1992, at the earliest I accept that the plaintiff
continues to suffer a serious depression. I doubt, having regard to all of the
evidence, that I could be satisfied that she will ever fully recover from what
I perceive to be a clear psychiatric illness. On the evidence adduced by the
defendant, I do not accept that he has established on the balance of
probability that, because this plaintiff has refused to acknowledge her pain,
grief and depression, I ought to hold her guilty of failure to mitigate her
stated by McCarthy J in
 1 IR 210 at p. 217;  ILRM 689 at p. 694:-
role of the this Court, in my view, may be stated as follows:-
is clear from a consideration of the evidence in this case there was credible
testimony to support the findings of the learned trial judge that the
respondent suffered nervous shock in the immediate aftermath of the accident
which was due to the negligence of the appellant, that as a result thereof she
suffered a post-traumatic stress disorder and depression: that these conditions
were induced by such nervous shock. Consequently, it is not open to this Court
to interfere with such findings.
addition the appellant has appealed against the finding by the learned trial
judge that the respondent, by not having treatment for her depressive condition
which would prove beneficial and aid her recovery, had not failed to mitigate
duty is to take all reasonable steps having regard to the nature of their
injuries or illness and the circumstances of the case and the onus is on the
defendant to establish such failure on the balance of probabilities.
regard to the evidence with regard to her condition between the date of the
accident and the date of the hearing as found by the learned trial judge, I
cannot find that the damages awarded in respect of that period by the learned
trial judge were excessive or so excessive as to justify this Court in
interfering therewith and would dismiss the appeal in respect of this award.
regard to damages for the future, the respondent was at the date of the hearing
52 years of age and the learned trial judge found that she continued to suffer
from a serious depression and that having regard to all of the evidence, he
doubted whether he could be satisfied that she will ever fully recover from
what he perceived to be a clear psychiatric illness.
onus was on the respondent to establish on the balance of probabilities that
she would not recover from this illness and if she had discharged this onus I
would have no hesitation in accepting that the amount awarded by the learned
trial judge was fair and reasonable.
is an appeal by the defendant/appellant (hereinafter referred to as the
appellant) against a judgment of the High Court delivered on 30 March 1993. The
learned High Court judge found that the plaintiff/respondent (hereinafter
referred to as the respondent) was entitled to recover damages against the
appellant for ‘nervous shock’.
14 April 1987, the appellant, while driving his car in County Dublin, collided
with a motor car wherein Thomas Kelly and his two daughters were travelling and
as a result Thomas Kelly and his daughters suffered severe personal injuries,
loss and damage for which they have recovered damages against the appellant,
which sum for damages includes the cost of future care. The respondent was not
within sight or sound of the accident, however, she claims that arising
therefrom she suffered injury which was caused by the negligence of the
that evening the respondent’s husband and two daughters had left home to
travel to Dublin Airport to meet a niece of the respondent’s off a plane.
After 9.30 p.m. the niece telephoned the respondent and told her that her
husband and two daughters had been seriously injured in a road traffic accident
The learned trial judge found that on receipt of that telephone call (
ILRM 530 at p. 532):-
[respondent] immediately went into shock, became upset and commenced vomiting.
She was taken to Jervis Street Hospital by her neighbours to see her family. .
. . When at Jervis Street Hospital she saw her family, each of whom [was] in an
appalling condition and one of whom she has described as looking like
respondent’s family remained in hospital for some time: her husband and
daughter Adrienne until July 1987, her daughter Shirley Anne until April, 1988.
The time during which they were in hospital was traumatic for the respondent.
respondent’s husband has been left brain damaged, and is now at home
where she cares for him. Her daughter Shirley Anne is also permanently brain
damaged and at home and continues to pose major management problems for the
respondent. Adrienne has made a full recovery from her injuries. While the
respondent’s husband and Shirley Anne have received damages for their
injuries from the appellant which includes the cost of their care (which will
be permanent) the respondent will not take in trained help. She believes she
should not hand their care to another person. She feels that she cannot let go,
and that if she did ‘let go’ she would never recover.
learned trial judge found the respondent to be a genuine witness and caring
human being whose personality and lifestyle have been utterly and disastrously
changed. There was conflicting medical evidence and the court preferred that of
Dr. Corry concluding (at p.
am, therefore, satisfied that the [respondent] suffered immediate nervous shock
resulting in vomiting on receiving the telephone call concerning her
family’s accident. This condition was, in my view, gravely aggravated by
the scenes she immediately thereafter witnessed in Jervis Street Hospital.
am satisfied that the post-traumatic stress disorder which Dr. Corry has given
evidence of continued up to 1992, at the earliest. I accept that the
[respondent] continues to suffer a serious depression. I doubt, having regard
to all of the evidence, that I could be satisfied that she will ever fully
recover from what I perceive to be a clear psychiatric illness. On the evidence
adduced by the [appellant], I do not accept that he has established on the
balance of probability that, because this [respondent] has refused to
acknowledge her pain, grief and depression, I ought to hold her guilty of a
failure to mitigate her damages. I accept the [respondent’s] explanation.
a wide-ranging notice of appeal was filed, the issues argued before the court
were more restricted. Mr. Kevin Haugh, SC, on behalf of the appellant, accepted
that there was credible evidence that the respondent did suffer the psychiatric
illness of post-traumatic stress disorder but submitted that her illness was
not related sufficiently to the accident but rather to the events in the weeks
and months thereafter. He argued that in these circumstances where the cause
was not the immediate traumatisation but that rather it occurred over the
months after the accident that the respondent was outside the contemplation of
the appellant. He distinguished
v. Bus Éireann
ILRM 722, and submitted that public policy requires that the respondent be
the matter of quantum he argued that there was a clear failure to mitigate loss
by the respondent. He submitted that during the year after the accident it was
reasonable that the respondent’s family would be her main concern, but
that after Shirley Anne was discharged home from hospital there was time for
her to consider her own needs and that at that stage there was a clear failure
by her to mitigate loss. She did not seek appropriate treatment for herself,
which was a failure to mitigate her loss: it was not a foreseeable consequence
that the appellant must pay for longer care because the respondent refuses
genuinely but unreasonably to get treatment. He submitted that the award of
£35,000 for six years’ suffering would be unreasonable and not
legally appropriate because of the evidence that she could have been cured
earlier if she had taken the care urged on her.
the issue of the respondent’s depression he submitted that Dr. Corry had
an inappropriate definition of psychiatric illness. Mr. Haugh drew attention to
the evidence of the respondent’s problems with the care of her husband,
her lack of social interest, her lack of recreation, and submitted that she was
not after 1992 suffering from a psychiatric illness. He argued that it was
perverse of the learned trial judge to find the respondent was suffering from a
psychiatric illness at the time of trial because Dr. Corry gave an
inappropriate definition of ‘psychiatric illness’: a life event was
not a psychiatric illness. He submitted that the learned trial judge erred in
fact in holding (by reason of an inappropriate definition of psychiatric
illness) that she was entitled to damages for nervous shock where the
post-traumatic stress disorder had gone and that at that stage she was
suffering from anxiety and depression. He submitted further that if the
respondent is entitled to general damages from the date of the hearing
£40,000 is grossly excessive, because if she took remedial care (according
to the evidence) she would recover. He pointed out that her genuineness was not
in issue but that it must be objectively reasonable.
Paul O’Higgins SC, for the respondent, submitted that to approach the
case on the floodgates principle was to overstate this case. The post-traumatic
stress disorder of the respondent was not in issue. He referred to the
situation at the hospital, describing it as devastating, and Dr. Corry’s
evidence as to the respondent’s exposure to the trauma surrounding the
accident and her reactions at that time. Mr. O’Higgins said that while
this case was not conformable to the
that it was not to be distinguished on principle. In this case it was conceded
that the respondent had had post-traumatic stress disorder. He argued that the
disorder occurred proximate to the accident. Mr. O’Higgins submitted that
there was no break in the trauma from when the respondent learned of the
accident; that the learned trial judge found post-traumatic stress disorder
which it is conceded by the appellant he could so find; that all the evidence
relates back to the accident. He argued that for someone in the close nexus of
the appellant to the injured husband and daughter she is very nearly in the
position of a rescuer. He said that the courts should not concern themselves
about public policy; that is for the legislature. On the quantum of damages he
said they ought to reflect only a small part of the disaster for the appellant,
i.e., her post-traumatic stress disorder and the depression. In that context
the award of damages was modest.
this is probably a very philosophical question, to what is mental illness. To
my own sense of mental illness, mental illness is a manifestation of the kinds
of experience people have in life. People do get sick when they lose their
jobs, people do get depressed when somebody dies belonging to them, serious
life events are to me the causation of what we call mental illness.
the above is read in the context of the entire body of evidence of Dr. Corry it
is not such as to negate the medical evidence and it is clear that the learned
trial judge had evidence upon which to hold that the respondent suffered from a
psychiatric illness, namely, post-traumatic stress disorder. Indeed this
illness is not in dispute. It is clear from the evidence that Dr. Corry
grounded the respondent’s illness in the events surrounding the accident.
Thus, there was evidence upon which the learned trial judge could hold the
post-traumatic stress disorder was caused by the events immediately surrounding
same considerations apply to the evidence of Dr. Corry as to the
respondent’s psychiatric illness of depression. There was oral evidence
which was credible upon which the learned trial judge could make his findings
the issue of quantum of damages there was no real contest as to the sum for the
post-traumatic stress disorder, which is not excessive. The matters in contest
are the damages for the depression from approximately 1992 and for the future.
accept that the plaintiff continues to suffer a serious depression. I doubt,
having regard to all of the evidence, that I could be satisfied that she will
ever fully recover from what I perceive to be a clear psychiatric illness.
fact that the respondent may never fully recover implies that she may partially
recover. A psychiatric illness from which there is partial recovery remains a
serious problem, and this fact was clearly taken into consideration by the
learned trial judge when he determined the quantum.