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A notable recent decision of the High Court emphasises the exacting requirements for nervous shock claims in the context of medical negligence litigation and sheds light on the challenges that plaintiffs’ face in establishing liability.
Germaine v Day [2024] IEHC 420
The High Court recently determined in Germaine v Day [2024] IEHC 420, that St. James’ Hospital was not liable for a widow’s psychiatric injury from witnessing her husband’s terminal lung cancer, initially missed by the hospital. The plaintiff, who developed an adjustment disorder, claimed her illness resulted from her husband’s late diagnosis and death due to a radiologist’s negligence.
Kelly v Hennessy [1995] – Leading Authority on Nervous Shock
Ms. Justice Egan stated that 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.
Required Plaintiff Conditions to Recover Damages for Nervous Shock
Hamilton C.J. set out the conditions that a plaintiff must satisfy to recover damages for nervous shock (“the Kelly v Hennessy criteria”):
A plaintiff must establish that they suffered a recognisable psychiatric illness.
A plaintiff must establish that their recognisable psychiatric illness was shock-induced.
A plaintiff must prove that the nervous shock was caused by the defendant’s act or omission.
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.
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.
Duty of Care
Ms. Justice Egan also considered Morrissey v HSE [2019] IEHC 268, where 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, O’ Connor J. declined to award damages in similar circumstances.
Application of Kelly v Hennessy
Ms. Justice Egan acknowledged that the plaintiff suffered a recognisable psychiatric illness which met the first criteria of Kelly v Hennessy.
Psychiatric Illness Not Shock-Induced
In relation to the second criteria, the court found no “shocking event,” stating that the plaintiff’s long sequence of worry and stress, culminating in taking her husband to the hospital and entering an anxiety state, did not qualify for nervous shock recovery. Instead, it resembled the gradual wearing down of nerves described in Jaensch v Coffey [1984] HCA 52, characterised by ongoing distress from caring for and worrying about her husband.
The Court cited the decision in Harford v ESB [2022] 2 IR 541, stating that there was no “sudden calamitous or horrifying event in the nature of an accident”. As such, the plaintiff had failed to satisfy the second of the Kelly v Hennessy criteria.
Nervous Shock Not Caused by the Defendant’s Act
Addressing the third criteria, Ms. Justice Egan stated that, as in Quinn v Midwestern Health Board [2005] 4 IR 1, the plaintiff needed to show that “but for” the breach of duty, she would not have suffered the psychiatric illness. The plaintiff’s experts’ reports failed to establish that earlier diagnosis and treatment would have prevented the deceased’s deterioration and that the plaintiff would have suffered an adjustment disorder regardless of the timing or nature of her husband’s symptoms.
The court found that criterion 3 was not met. With no dispute on criterion 4, the court moved to whether a duty of care was owed to the plaintiff.
Four Stage Test for Duty of Care
Ms. Justice Egan considered the four-stage test for duty of care from Glencar Explorations Plc v Mayo County Council No. 2 [2002] 1 IR 84 as:
Reasonable foreseeability
Proximity of relationship
Absence of countervailing public policy considerations, and
Fairness, justice, and reasonableness of imposing a duty of care.
The court, applying Glencar, did not find a duty of care to the plaintiff.
Ms. Justice Egan cautioned against a general requirement for doctors to consider the health of parties other than the patient, as this could lead to unexpected consequences and uncontrolled liability, potentially conflicting with the doctor’s duty to the patient.
Ms. Justice Egan concluded by saying she has great sympathy for Ms. Germaine, who has “undeniably” suffered psychiatric injury in addition to losing her husband. However, she could not find in her favour.
Conclusion
This case underscores the strict requirements for nervous shock claims in the context of medical negligence litigation, particularly the necessity for a sudden, shocking event and clear causation linked to the defendant’s actions.
It highlights the challenges that plaintiffs’ face in establishing liability for psychiatric injuries in the absence of direct and immediate trauma.
Further Information
To find out more about making a personal injury claim for nervous shock, please contact Avril Scally, Partner and Head of our award-winning Medical Negligence & Personal Injury Team.