There was a famous case some years ago (Kelly -v- Hennessy 1995) in which the Plaintiff’s husband and two daughters suffered severe injuries in a car accident.
The Plaintiff (wife/mother) was informed by telephone of the incident and immediately went straight to the hospital where she saw members of her injured family in a very poor state.
She suffered shock, which was aggravated by what she saw. Mr Justice Hamilton set out the five conditions to be satisfied in order to succeed in an action for nervous shock:-
1. The Plaintiff must establish that he/she actually suffered “nervous shock” (a recognisable psychiatric illness).
2. A Plaintiff must establish that his/her recognisable psychiatric illness was shock induced.
3. A Plaintiff must prove that the nervous shock was caused by a Defendant’s act or omission.
4. The nervous shock sustained by the Plaintiff must be by reason of the actual or apprehended physical injury to the Plaintiff or to a person other than the Plaintiff.
5. The Plaintiff must show that the Defendant owed him or her a duty of care not to cause him/her a reasonably foreseeable injury in the form of nervous shock.
It is important to stress that these types of cases are not limited to car accident claims. They can be related to any different types of cases including that of medical negligence claims which are taken. Examples of nervous shock claims:-
1. Parents of a young boy in his early 20’s got word to say that their son had been involved in a car accident and that they should go to the hospital. His mother and sister arrived at the hospital and a short time later, his father arrived.
Little information could be given by the hospital authorities at that stage because of the serious injuries suffered by this young man. The family was informed that his injuries were of a catastrophic nature.
He was on a life support machine for over 24 hours and during that time his parents and sister were with him until a decision was made in conjunction with the medical team that life support was to be turned off.
This is probably a classic case that fulfilled all of the criteria for nervous shock. Naturally the claim itself had to be supported with psychiatric evidence which was forthcoming.
These claims were settled for well in excess of €100,000.00 each. One is often asked the question as to what is the range of damages given in these type of cases. They can range from €40,000.00 up to €150,000.00.
2. This case relates a young family whose young son developed a rash and high temperature. His parents brought him to the hospital who diagnosed mumps and sent him home.
His condition deteriorated, and following repeated telephone calls to the hospital when the condition of mumps was again diagnosed, his parents had to bring him to the Caredoc (GP) service, who informed them that his condition was very serious and that he should be immediately brought to the hospital.
This was a normal healthy young child who should have been treated appropriately with antibiotics. There was a misdiagnosis which resulted in this child suffering brain damage.
If he had been treated in an appropriate fashion on first presentation to the hospital, he would have made a full recovery but as it was, for some years, they had to live with the ordeal of a brain damaged son every minute and hour of the day.
This child needed round the clock care. Liability was admitted for the misdiagnosis. The cases settled for a substantial 6 figure sum.
3. A man whose mother was a resident in a house under the care and control of the HSE received news to say that his mother had been murdered in a savage assault.
When he attended at the hospital, he was not allowed to see her because he was advised that, given the nature of her injuries, he would find it too disturbing and distressing to see her.
Reluctantly, he accepted the advice given him, so as such he had no opportunity to see his mother. She had an horrific death. Some judges have taken the view that a prolonged grief reaction of over 2 years can satisfy the criteria for nervous shock and, based on the medical evidence in this case, it fitted that category.
In addition to the psychological reaction, there was also a vocational aspect to the case. The case was settled prior to hearing.