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1. As 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.

2. The 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.

3. The learned trial judge found that:-

4. On 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 [1993] ILRM 530).

5. The appellant has appealed against the judgment and order of the learned trial judge on the grounds:-

6. In the course of his judgment in McLoughlin v. O’Brian [1983] 1 AC 410 (hereinafter referred to as McLoughlin’s case) Lord Wilberforce stated at p. 418:-

7. While 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.

8. The cases seem to establish that in order to succeed in an action for damages for nervous shock a plaintiff must establish the following:-

9. In 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.

10. This principle was enunciated in the Australian case of Jaensch v. Coffey (1984) 155 CLR 549, by Brennan J as follows (at p. 565):-

11. A plaintiff may recover only if the psychiatric illness is the result of physical injury inflicted on him by the defendant or if it is induced by ‘shock’. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant’s carelessness.

12. Brennan J gave two examples where there would be no recovery (at p. 565):-

13. 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.

14. Counsel 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.

15. This submission will be dealt with by me at a later stage.

16. This view was clearly expressed by Keane J in Jaensch v. Coffey as 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 injury’.

17. 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.

18. It is not enough to show that there was a reasonably foreseeable risk of personal injury generally. Deane J stated in Jaensch v. Coffey, already cited (at p. 604), that:-

19. Though 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.

20. The 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.

21. Was the fact that such nervous shock would be suffered by the respondent reasonably foreseeable by the appellant?

22. It was stated by Brennan J, now Chief Justice of Australia, in the case of Jaensch v. Coffey, already referred to (at p. 563) , that:-

23. It 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.

24. It 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.

25. In the course of his judgment in McLoughlin’s case Lord Bridge of Harwich stated (at p. 432):-

26. The 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.

27. The question of who came within the scope of those to whom a defendant owed a duty of care has arisen in many cases and is the subject of continuing debate.

28. However, the question relevant to this appeal is whether the respondent came within the scope of the appellant’s duty of care and the fact that she does so is not in issue.

29. As stated by Lord Atkin in Donoghue v. Stevenson [1932] AC 562 at p. 580 of the report:-

30. At 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 species of ‘culpa’, is 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.

31. There is no doubt but that nervous shock and a psychiatric illness induced by it are reasonably foreseeable consequences of the appellant’s negligence in this case.

32. Nor is there any doubt but that the respondent came within the appellant’s duty of care.

33. The acts of negligence on the part of the appellant which occasioned the injuries to her husband and two daughters occurred out of sight and earshot of the respondent.

34. However, the law permits of the recovery of damages for nervous shock and psychiatric illness induced thereby where a plaintiff comes on the immediate aftermath of the accident.

35. The relationship between the plaintiff and the person injured must be close. As stated by Gibbs CJ in Jaensch v. Coffey (at p. 555 ):-

36. Lord Wilberforce in the course of his judgment in McLoughlin’s case stated at p. 422:-

37. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration.

38. Even though in McLoughlin’s case and in Jaensch v. Coffey, the 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.

39. Both 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 the accidents.

40. As Brennan J stated (at p. 578):-

41. The 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 immediately thereafter.

42. If the learned trial judge’s finding in this regard is correct, then the respondent is entitled to recover damages and this appeal must be dismissed.

43. Counsel 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.

44. He submitted that an illness caused in such circumstances did not come within the proximity rule and that public policy required that the respondent’s claim for damages be excluded.

45. There is no public policy that the respondent’s claim, if substantiated, should be excluded.

46. As stated by Lord Russell of Killowen in McLoughlin’s case at p. 429 of the report:-

47. But 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.

48. In 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.

49. The assessment of such evidence is a matter for the learned trial judge and he stated (at p. 533) that:-

50. I 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.

51. I 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.

52. I 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 damages.

53. With regard to these findings the only issue before this Court is whether or not there was credible testimony before the learned trial judge to justify such findings and inferences.

54. As stated by McCarthy J in Hay v. O’Grady [1992] 1 IR 210 at p. 217; [1992] ILRM 689 at p. 694:-

55. The role of the this Court, in my view, may be stated as follows:-

56. It 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.

57. I would disallow the appeal on these grounds.

58. In 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 her damages.

59. There is a duty on all plaintiffs to take all reasonable steps to mitigate the damages or loss which they claim against another party.

60. The 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.

61. The respondent in this case has provided an explanation for her failure so to do, which the learned trial judge accepted.

62. There was evidence before the learned trial judge which entitled him to accept the explanation and this ground of appeal also fails.

63. The appellant has also appealed to this Court on the grounds that the damages awarded by the learned trial judge were excessive.

64. The learned trial judge had awarded the sum of £35,000 by way of damages to the date of hearing and £40,000 in respect of the future.

65. Having 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.

66. With 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.

67. The 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.

68. The learned trial judge however does not appear to have been so satisfied and refers to a full recovery. He appears to anticipate at least a partial recovery.

69. In these circumstances, I consider the award of £40,000 to be excessive and would substitute an award of £20,000 under this heading for damages.

70. This 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’.

71. On 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 appellant.

72. On 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 ([1993] ILRM 530 at p. 532):-

73. The [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 ‘minced meat’.

74. The 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.

75. The 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.

76. The 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. 533):-

77. I 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.

78. I 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.

79. For pain and suffering to date, I would award a figure of £35,000. For pain and suffering in the future, I would award a figure of £40,000.

80. While 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 Mullally v. Bus Éireann [1992] ILRM 722, and submitted that public policy requires that the respondent be excluded.

81. On 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.

82. Addressing 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.

83. Mr. 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 Mullally case 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.

84. Mr. Haugh then stated:-

85. And you can have all of these things, I suggest, in the proportion in which she has them without being psychiatrically ill?

86. To which Dr. Corry responded:-

87. Well, 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.

88. When 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 the accident.

89. The 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 of fact.

90. On 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.

91. The learned trial judge had credible evidence upon which to reach his conclusion that the respondent did not fail to mitigate her damages. Her actions were consistent with her illness.

92. The learned trial judge held, on credible evidence, that:-

93. 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.

94. The 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.

95. In these circumstances the sum is not excessive or so excessive as to warrant interference by this Court.

96. I would dismiss the appeal on all grounds.