Clarification on Nervous Shock Criteria Issued by High Court 10th July 2024

The High Court today[1] has reaffirmed the need to fulfil the criteria as laid down in Kelly v Hennessey in order to recover damages for nervous shock. In this article, Cliona Kenny, Partner reviews the judgement.

The Plaintiff is a widow and claimed damages for nervous shock arising from her husbands’ death from lung cancer.  While breach of duty had been admitted in relation to a delay in diagnosis, the delayed diagnosis was not causative of his death from lung cancer.

His widow in her claim for nervous shock alleged that she was unaware of her husband’s terminal prognosis (as her husband had not told her) until some weeks before his ultimate passing and that the hospital were under a duty to shield her from the psychological impact of witnessing her husband’s deterioration for which she was not prepared.   The Court found this was not a reasonable duty to impose on the hospital, although refrained from determining any general maxim as to whether health care providers owe a duty to the relatives of their patients.  Judge Egan did however provide a detailed summary of the law in that area and outlined how a Plaintiff would have to establish proximity and reasonableness under the Glencar test before it would be appropriate to extend a doctor’s duty of care to relatives.

The Court found that the Plaintiff failed to satisfy criteria 2, 3 & 5 of the Kelly v Hennessy test as follows:

  • The Plaintiff’s illness of adjustment disorder was not “shock induced” and the event of her husband’s decline and deterioration over the course of a number of weeks and months was not a “sudden shocking event”.
  • The Court found that even if there was a “sudden shocking event “, it was not caused by the Defendant’s act of omission – instead the events that precipitated the Plaintiff’s illness were the demise and death of her husband which would have occurred irrespective of any negligence of the Defendant.
  • No duty of care arose between the Defendant and to the Plaintiff as the deceased’s spouse.

This judgement will be welcomed as clarification of the criteria laid down for nervous shock claims, giving some further certainty to the law in this area.

[1] Carmel Germaine v Mary Day 2020 6621P