Bridget Devlin and Terence Devlin (appellant/plaintiff) v The National Maternity Hospital (respondent/defendant)
Negligence - Nervous Shock - Appeal against dismissal of plaintiffs claim for damages - Circumstances under which damages for nervous shock can be recovered - Whether in the absence of physical injury entitlement exists to recover damages - Statute of Limitation (Amendment) Act, 1991 s. 2
The Supreme Court (Chief Justice Murray, Mrs Justice Denham and Mr Justice Finnegan); judgment delivered November 14th, 2007.
An actual or apprehended physical injury to a plaintiff or to a person other than the plaintiff is a necessary requirement of law in an action for nervous shock. The condition of actual or apprehended physical injury must be satisfied in order for recovery of damages to succeed. There are limits in law to liability for nervous shock unaccompanied by physical injury. The common law provides illustrations of successful cases where damages for nervous shock were awarded. However, these cases relate to persons perceiving an accident or its immediate aftermath
The Supreme Court so held in dismissing the appellants appeal and affirming the order of the High Court.
Aongus O'Brolchain, SC, Padraig McCartan, SC, and Karen O'Driscoll, BL, for the appellant/plaintiff; Charles F. Meehan, SC, and Leesha O'Driscoll, BL, for the respondent/defendant.
Mrs Justice Denham, delivering the judgment of the court, commenced by stating that the case arose from the tragic circumstances of the death of a child. The issues in the case related to a post-mortem, the retention of organs and nervous shock. This was an appeal from the High Court dismissal of the plaintiffs' claim for damages. Mrs Justice Denham stated that defendant had applied, at the hearing of the case, for a non-suit. The learned trial judge permitted the application, heard submissions and acceded to the application. Judgment was given on July 1st, 2004, when both actions were dismissed.
Mrs Justice Denham said that an appeal was filed on behalf of the plaintiffs on the grounds that the learned High Court judge (i) erred in law in his application of the principles set out in Kelly v. Hennessy 3 IR 253, as recited in Fletcher v. The Commissioner of Public Works 2 ILRM 94 in holding that in order to recover compensation the plaintiffs had to suffer a physical or apprehension of a physical injury. Further and/or alternatively he erred in law in applying the principle of Kelly in the case, (ii) Erred in law in holding that in order to recover damages for nervous shock and/or a psychiatric injury the plaintiffs had to have suffered and sustained a physical or apprehension of a physical injury, (iii) Erred in law and in fact, in light of the plaintiffs' then state of knowledge, in finding that the plaintiffs' claim against the defendant for the unauthorised carrying out of a port-mortem and the complaints and injuries arising there from was statute barred, (iv) erred in fact and in law in not distinguishing between having knowledge a post-mortem had taken place and not knowing the infant's organs had been removed and retained and (v) erred in law and in fact in acceding to the defendants application for a direction
Mrs Justice Denham stated that on the application for a direction the High Court applied a test namely, whether, treating the plaintiffs' case at its highest, the court would be entitled to arrive at the conclusion that the defendant had a case to meet. The High Court held that it must assume the truth of all factual evidence given on behalf of the plaintiffs. The learned High Court judge assumed the following matters: "firstly, the plaintiffs did not give their consent to a post-mortem examination being carried out; secondly, that the plaintiffs did not know that in the course of that post-mortem, examination organs would be removed and retained by the defendants; thirdly, the plaintiffs did not actually learn of the fact that the organs had been retained until they received a letter on that behalf dated March 24th, 2000, from the defendant; and fourthly, that on learning that the organs . . . had been retained . . . the first named plaintiff suffered shock and post-traumatic stress." Mrs Justice Denham stated that on the application for a direction the High Court applied the correct principles of law and dismissed the appeal insofar as it was grounded on the basis of a claim of error of in acceding to the defendant's application for a direction.
Mrs Justice Denham stated that the instant appeal was considered on the basis of an appeal by the first named plaintiff only. The High Court found as fact that no cause of action was established on the part of the second named plaintiff, in that there was no evidence that he had suffered an injury or damage as a result of the matters in issue. Given the jurisprudence of the court, for example as stated in Hay v. O'Grady 1 IR 210, Mrs Justice Denham stated she would not interfere in these findings.
Mrs Justice Denham then considered the issue as to whether the claim was statute barred. On the issue of the lack of consent for the post-mortem, the High Court had held that "given that the plaintiffs, on their own admission, not only were aware of the fact that the alleged unauthorised post-mortem had taken place, but that they were angered by that fact as far back as May, 1988, and yet made no claim on that behalf until July, 2002, it follows that . . . the plaintiffs' complaint with regard to carrying out that post-mortem . . . without their consent would appear to be statute barred". Mrs Justice Denham was satisfied that no error of the High Court had been established and accordingly affirmed this aspect of the High Court judgment. The High Court accepted, for the purpose of the direction being sought, that the plaintiffs were not aware of the fact that the organs had been retained until they received the letter of March 24th, 2000. The defendant submitted that the plaintiffs had constructive knowledge, pursuant to s.2(2)(b) of the 1991 Act, which provides:
"For the purpose of this Section a person's knowledge includes knowledge which he might reasonably have expected to acquire from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek."
The fact of the retention had been known to the plaintiff's medical expert but had not been revealed in a prepared report to the plaintiff's solicitor. On this issue the learned judge did not believe that that knowledge could be imputed to the plaintiffs because he did not think that, at that time, it would have been reasonable for the plaintiffs to have sought advice. Mrs Justice Denham adopted and affirmed the High Court finding that the plaintiffs' claim, in respect of the retention of organs, was not statute barred. Mrs Justice Denham then considered whether there was a recoverable loss on foot of the organ retention. As to the cause of action, the High Court had held that the defendant was not entitled to carry out the post-mortem and if they were not so entitled that they were equally not entitled to remove and retain organs. In the absence of such a right the defendant owed the plaintiffs a duty not to interfere with the remains of the deceased. It was reasonably foreseeable that, had they done so, as they did, it was probable that the plaintiffs would have suffered distress on that account. The High Court referred to the accepted practice of the 1980s as to the situation when there had been consent to the post-mortem: that it was implicit that the pathologist had permission to remove or retain organs. Mrs Justice Denham said that in the instant case the plaintiffs did not consent to the removal of their child's organs at post-mortem and the court was required to consider the consequences.
Mrs Justice Denham said "nervous shock" was a legal term relevant to the case. In Kelly v Hennessy 3 IR 253 at p. 269 it was stated that "nervous shock" is a legal term used to connote a mental as opposed to physical injury to a person. It has been accepted in Irish law that such an injury can be the subject of damages. The plaintiff submitted that she suffered nervous shock or, that the law as to nervous shock should be extended to cover her situation. The defendant argued that the circumstances in which damages for nervous shock are recoverable did not arise in the instant case. Mrs Justice Denham stated the relevant facts were that the plaintiff did not learn of the fact that the organs of her baby had been retained until March, 2000. On learning of the organ retention the first named plaintiff suffered shock and post traumatic stress, a psychiatric illness. The High Court in considering the common law referred to the circumstances as set out in Kelly under which damages for nervous shock could be recovered. It was held that in order to recover damages for nervous shock a plaintiff must establish (a) that he or she actually suffered a recognisable psychiatric illness; (b) that such illness was shock induced; (c) that the nervous shock was caused by the defendant's act or omission; (d) that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff; (e) that the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general. The High Court found that ground (a) above was met; that the first named plaintiff suffered a post-traumatic stress, a psychiatric illness. Ground (b) was also found to have been met, in that the psychiatric illness was induced by the shock of learning that the organs of her child had been retained. The High Court accepted that ground (c) had been met. As to ground (e) the learned judge was of the opinion that the condition was satisfied. Mrs Justice Denham stated, however, the High Court held that the fourth condition, (d) had not been met. That condition required that the nervous shock, sustained by the first named plaintiff, must have been by reason of actual or physical injury to the plaintiff or to a person other than the plaintiff. There was no evidence that the first named plaintiff suffered any physical injury or that any other person suffered a physical injury. The plaintiffs had submitted in the High Court that the facts in Kelly were different and that the High Court should have regard to that. The learned High Court judge pointed out that the facts in Fletcher v. The Commissioners of Public Works were different also but, that the Supreme Court found favour with Kelly. The High Court held that all the circumstances necessary to establish in order to succeed in an action for damages for nervous shock had not been established by the plaintiffs.
Mrs Justice Denham stated that the core issue in the appeal was a matter of law. Did the High Court err in holding that in order to recover damages for "nervous shock" sustained by the first named plaintiff it was necessary that there be actual or apprehended physical injury to the plaintiff or to a person other than the plaintiff ? Mrs Justice Denham stated damages for "nervous shock" have been recoverable in an Irish court for over 100 years. The early cases related to fright in an accident situation, in which the plaintiff was not physically injured but where he/she feared for the injury of others. In this context Mrs Justice Denham cited Byrne v. Great Southern and Western Railway Company of Ireland (1884) cited at 26 LR (Ir)428, and Bell v. Great Northern Railway Company of Ireland (1890) 26 LR (Ir) 428. These early cases recognised "nervous shock", an archaic term covering psychiatric illness. These early cases related to situations where the plaintiff or other persons who were close to the plaintiff, were in danger of physical injury or had been physically injured. In Bell Palles CB stated:
". . . as the relation between fright and injury to the nerve and brain structures of the body is a matter which depends entirely upon scientific and medical testimony, it is impossible for any court to lay down, as a matter of law, that if negligence causes fright, and such fright, in its turn, so affects such structures as to cause injury to health, such injury cannot be a consequence which, in the ordinary course of things would flow from the negligence unless such injury' accompany such negligence in point of time".
Mrs Justice Denham stated that these words were spoken in a context and that context was very important. The context was an accident and of witnesses to that event or its aftermath. Negligence arises in what may be called "aftermath" cases, where witnesses to an accident, who themselves are not injured, may be caught up in the aftermath of the accident and injured. In this context attention was drawn by Mrs Justice Denham to Mullaly v. Bus Eireann and Anor ILRM 722 and Kelly as examples of "aftermath" cases. Mrs Justice Denham stated these cases illustrated the fact that the common law applying liability in negligence from nervous shock to those exposed to the aftermath of an accident was tightly drawn.
Mrs Justice Denham then considered Fletcher v. The Commissioners of Public Works where in it was pointed out that damages were not recoverable for grief or sorrow alone, but nervous shock, even when there was no physical injury or even fear of such injury, was compensatable when caused by the negligence of the defendant. Mrs Justice Denham noted that in Fletcher Keane CJ stated at p. 110:
"The central issue . . . accordingly, is not whether the defendants ought to have foreseen that the plaintiff would suffer psychiatric injury. It is whether the claim by the plaintiff comes within the category of 'nervous shock' cases in which the courts have awarded damages for such psychiatric injury, even in the absence of any physical injury, and, if not, whether the plaintiff was nonetheless entitled to recover damages in respect of the reasonably foreseeable psychiatric illness . . . That further inquiry is necessary because of the care with which the courts have approached claims for psychiatric illness, unaccompanied by physical injury, arising out of alleged negligence."
Mrs Justice Denham noted that Keane CJ stated that the circumstances which, when they give rise to a specific psychiatric disorder unaccompanied by physical injury that was the reasonably foreseeable consequence of a breach of duty of the defendant, may lead to a finding of liability, were described in Kelly, in other words - provided the conditions stated were met.
Mrs Justice Denham stated the central issue in the instant case was whether the claim of the plaintiff came within the category of "nervous shock" cases in which the courts have awarded damages for psychiatric injury, even in the absence of physical injury, and, if not, whether the plaintiff was nonetheless entitled to recover damages. Mrs Justice Denham stated grief and sorrow were not a basis upon which to recover damages. There has to be a proven psychiatric illness. It was accepted for these proceedings that the first named plaintiff had suffered a psychiatric illness. Mrs Justice Denham stated that the common law had evolved by reference to the occurrence of a specific event - a railway or car accident. In Alcock & Ors v. Chief Constable of South Yorkshire Police 1 AC 310 Lord Ackmer said at p.401 "'Shock', in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system." This statement reflected the common law in Ireland where the "aftermath" cases either relate to the event, or the situation in its immediate aftermath. It is clear that the common law was stated in Kelly, with five conditions, subsequently endorsed in Fletcher. On this law the plaintiff was not entitled to succeed because the fourth condition was not met. The learned High Court judge was correct in identification and application of the law. On this basis the plaintiff was not entitled to succeed and the appeals were dismissed.
Mrs Justice Denham stated however, that counsel for the plaintiff pressed the court, if it found that the current law did not apply, to extend it on general principles of the law of negligence. This was a matter of significant general importance. Such a decision could have serious repercussions. In considering the extension of the common law liability for "nervous shock", policy issues arise. Mrs Justice Denham noted in Fletcher the issue as to whether the law should be extended also arose for consideration. The Supreme Court in that case refused to do so. Thus there are limits in law to liability for nervous shock. The common law provides illustrations of successful cases where damages for "nervous shock" were awarded. However, these cases relate to persons perceiving an accident or its immediate aftermath.
Mrs Justice Denham stated this was a tragic case. The plaintiffs were entitled to deepest sympathy for their loss. However, the law as it stands did not entitle them to damages and the court would not extend the law. Any such development would give rise to uncertainty in the law of liability generally and to potentially unforeseeable repercussions. Mrs Justice Denham stated for the reasons given she would dismiss the appeal and affirm the order of the High Court dismissing the action.
The Chief Justice, Mr Justice Murray and Mr Justice Finnegan concurred with the judgment of Mrs Justice Denham.
Solicitors: Augustus Cullen Law (Wicklow) (for the appellant); Beauchamps (Dublin) (for the respondent).
Martin McDonnell, barrister
