Supreme Court dismisses appeal regarding nervous shock damages where no physical injury occurred. Court refuses to extend common law liability for psychiatric injury without physical impact.

THE SUPREME COURT

[S.C. No: 346 of 2004]

[S.C. No: 352 of 2004]

Murray C.J.

Denham J.

Finnegan J.

BETWEEN/

BRIDGET DEVLIN AND TERENCE DEVLIN

PLAINTIFFS/APPELLANTS

AND

THE NATIONAL MATERNITY HOSPITAL

DEFENDANT/RESPONDENT

Judgment delivered the 14th day of November, 2007 by Denham J.

1. This case arises in the tragic circumstances of the death of a child. The issues relate to a post-mortem, the retention of organs,

and nervous shock.

2. This is an appeal from the dismissal by the High Court of the plaintiffs' claim for damages arising from the negligence, breach of

duty, including breach of statutory duty, and/or breach of contract, on the part of the National Maternity Hospital, its servants or

agents (hereinafter referred to as 'the hospital'), by reason of which it was claimed that the plaintiffs sustained serious personal

injuries, loss, damage, and/or expense.

3. Counsel on behalf of the hospital applied, on the sixth day of the hearing of the case, for a non-suit, indicating that if it were

unsuccessful he would go into evidence. The learned trial judge permitted the application, and having heard the submissions, acceded

to the application. Judgment was given on the 1st July, 2004, when both actions were dismissed.

4. An appeal was filed on behalf of the plaintiffs. The Notice of Appeal sets out five grounds of appeal, being that the learned High

Court judge:-

(i) Erred in law in his application of the principles set out in Kelly v. Hennessy [1995] 3 I.R. 253, as recited in Fletcher v.

The Commissioner of Public Works, [2003] 2 I.L.R.M. 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 v. Hennessy in this 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 hospital for the unauthorised carrying out of a port-mortem and the complaints and injuries arising therefrom 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.

(v) Erred in law and in fact in acceding to the hospital's application for a direction.

5. In addition, the hospital has filed a notice to vary the judgment and order of the High Court. The three grounds in the notice to

vary are as follows:-

(i) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in not imputing to the

plaintiffs and each of them by virtue of the operation of the provisions of s. 2 (2) of the Statute of Limitations

(Amendment) Act, 1991 the knowledge that the plaintiffs expert, Dr. Barson, Consultant Pathologist, had, that organs and

tissue had been retained when the expert furnished his report, dated the 23rd day of August, 1991 (and supporting

documentation) to the plaintiffs solicitors which clearly demonstrated and/or indicated that organs and tissue had been

removed and retained from the plaintiffs' stillborn infant, Laura.

(ii) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in finding that for the

purposes of the operation of the Statute of Limitations Acts, 1957 - 1991 that time only commenced to run against the

plaintiffs' on receipt of the letter from the hospital dated 24th March, 2000.

(iii) That the learned trial judge erred in law and in fact and on a mixed question of law and fact in failing to hold that the

plaintiffs did not establish any personal injury loss and damage arising out of the alleged negligence and breach of duty on

the part of the hospital where the first named plaintiff gave evidence to the effect that even if consent had been

obtained for the post-mortem the letter dated 24th March, 2000, could have caused same and/or similar personal injury,

loss and damage as was allegedly caused by the alleged lack of consent.

6. Direction

Although it is the last ground of appeal, I will consider it first. It was submitted that the High Court erred in acceding to the hospital's

application for a direction.

7. On the application for a direction the High Court applied a test, that is whether, treating the plaintiffs' case at its highest, the

Court would be entitled to arrive at the conclusion that the hospital 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, referring to O'Donovan v. Southern Health Board [2001] 3 IR 385. This it

then did.

8. The learned High Court judge assumed the following matters:

"… for the purpose of this application I must assume, as I do, firstly that the plaintiffs did not give their consent to a

post-mortem examination being carried out on their deceased daughter; secondly, that the plaintiffs did not know that in

the course of that post-mortem examination organs would be removed from the deceased and retained by the

defendants; thirdly, that the plaintiffs did not actually learn of the fact that the organs had been retained until they

received a letter on that behalf dated 24th March, 2000, from Dr. Declan Keane, then Master of the defendant's hospital;

and fourthly, that on learning that the organs of her deceased daughter had been retained by the defendants the first

named plaintiff, Bridget Devlin, suffered shock and post-traumatic stress."

9. I am satisfied that on the application for a direction the High Court applied the correct principles of law. The High Court assumed

the truth of the evidence given on behalf of the plaintiffs, and determined the application on that basis. This is the correct approach,

and there was no error made in this regard by the learned High Court judge. Consequently, I would dismiss the appeal insofar as it is

grounded on the basis of a claim of error of the High Court in acceding to the hospital's application for a direction.

10. Single Appellant

In considering this appeal, I do so on the basis that it is an appeal by Mrs Bridget Devlin, and not by Mr Terence Devlin. In the High

Court counsel for the hospital submitted that, irrespective of how the Court determined the issue of liability between the parties, no

cause of action was established on the part of Mr Terence Devlin, in that there was no evidence that he had suffered an injury or

damage as a result of the matters in issue. The High Court held:-

"Not only was there no medical evidence to suggest that Mr Devlin suffered an injury as a result of the matters

complained of but he himself in the course of his evidence did not say one word which suggested that he personally had

suffered an injury. He had a lot to say about how his wife had suffered but nothing about himself. In this regard, I reject

the suggestion by Mr McCartan Senior Counsel on his behalf that I should infer from the evidence which I heard that Mr

Devlin had suffered distress, as Mr McCartan suggested that Peart J. had approved of in the course of an unreported

judgment which he delivered on 11 March of this year in the case of Philip -v- Ryan and the Bon Secours Hospital.

In my view, I cannot manufacture evidence which is not there. Accordingly, I am satisfied that Mr Devlin has not proved

any injury or loss as a result of the matters of which he complains; therefore, even if he were to succeed on the liability

issue it would be a case of damnum absque injuria. Accordingly, I will accede to Mr Meenan's application to non-suit Mr

Devlin."

11. These were findings of fact by the High Court. Given the jurisprudence of this Court, for example as stated in Hay v. O'Grady

[1992] 1 I.R. 210, I would not interfere in these findings. While no specific grounds of appeal would appear to expressly relate to the

issue of Mr Terence Devlin's appeal, if and insofar as any appeal was lodged on his behalf, I would dismiss it, affirming the decision of

the High Court.

12. Statute Barred

I shall consider next the issue as to whether the claim is statute barred. The High Court dealt with this matter under two headings,

and I will adopt the same approach. First, there is the submission of a lack of consent to the post-mortem examination; and secondly,

the issue of the retention of organs.

13. Post-mortem

On the issue of the lack of consent for the post-mortem, the High Court held:-

"Insofar as the [hospital] carried out the post-mortem examination without the consent of the plaintiffs, which for the

purpose of this application I must accept to be a fact, both of the plaintiffs conceded in evidence that they were aware

that a post-mortem had been carried out by the [hospital] within a very short time of the event and both expressed

shock and anger at learning of that fact. Yet, although the plaintiffs instructed their solicitor with regard to other matters

relating to the death of their stillborn child, no complaint was made on their behalf with regard to the alleged unauthorised

autopsy carried out by the [hospital] and no proceedings on that behalf were taken by the plaintiffs until the proceedings

herein were instituted on 26th July in the year 2002.

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, on the face of it the plaintiffs' complaint with regard to carrying out that post-

mortem examination without their consent would appear to be statute barred.

However, in the circumstance that there was evidence on behalf of the plaintiff, evidence which for the purpose of this

application I must accept as the truth, that a nurse in Holles Street Hospital told Mr. Devlin that, in the case of a

stillbirth, it was the standard practice of the hospital to carry out a post-mortem examination, although admittedly that

was said after the post-mortem examination on Laura Devlin had taken place. It was submitted by Mr. McCartan on behalf

of the plaintiffs that Mr. Devlin was thereby induced into believing that he would have had no choice as to whether or not

a post-mortem examination should be carried out and, therefore, the plaintiffs did not know that they had been wronged

insofar as the carrying out of the post-mortem was concerned until these proceedings commenced.

Accordingly, it was submitted that the complaint with regard to the alleged unauthorised post-mortem was not statute

barred. I cannot accept that. If it is a fact, which I accept for the purpose of this application that it is, that a post-

mortem examination was carried out without the plaintiffs' consent there is no doubt but that they were aware of the

fact shortly afterwards and equally there is no doubt that they knew that they had been wronged because they were

angry. I have no doubt but that they told their solicitor all about what had happened.

Accordingly, I am not persuaded that there was any justification for the failure to institute proceedings in that behalf

within the appropriate statutory time limit. I do not accept that what the nurse said to Mr. Devlin with regard to the

standard practice of carrying out a post-mortem on a stillborn could or did have the effect of preventing the statute from

running against the plaintiffs.

It follows, in my view, that all complaints by the plaintiffs arising out of the failure of the [hospital] to obtain their

consent to a post-mortem examination are indeed statute barred."

The High Court found, and carefully analysed, the relevant facts on this issue in the above judgment. I am satisfied that no error of

the High Court has been established. Accordingly, I would affirm this aspect of the judgment.

14. Retention of Organs

The High Court considered also whether or not the plaintiffs' claim as to the wrongful retention of organs is statute barred. The

learned High Court judge accepted, as he was bound to do 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 from Dr Keane of 24th March, 2000.

15. The hospital submitted that the plaintiffs had constructive knowledge of that fact pursuant to the law in s.2(2)(b) of the Statute

of Limitations (Amendment)Act, 1991. Section 2(2)(b) 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."

16. On this issue the High Court held as follows:-

"In that regard, Dr. Tony Barson, a consultant pathologist who gave evidence on behalf of the plaintiff, said that in the

month of August, 1991 he had seen the autopsy report of 31st May 1988, on the late Laura Devlin which had been

prepared by Dr. Kelehan; a report with regard to that post-mortem which he, Dr. Kelehan, had carried out. It was clear

from that report that, in the course of that post-mortem examination, organs had been taken from the deceased.

In that regard, while Dr. Barson appeared to say that he conveyed that fact to the plaintiffs' then solicitor Mr. Lambe, it

transpired that he thought that it was evident from the autopsy report that that is what had happened. That is, that the

organs had been removed. The fact of the matter was that, in his report to the plaintiffs' solicitor, he never mentioned

that organs had been removed in the course of the post-mortem examination. He himself did not address the subject

because it was not something to which he had been asked to address.

Accordingly, while Dr. Barson himself may well have known that organs had been retained, as he appears to have kept

this knowledge to himself because at the time he did not think it relevant, I do not think that that knowledge can be

imputed to the plaintiffs by virtue of the provisions of Section 2(2)(b) of the 1991 Act because I do not think that, at

that time, it would have been reasonable for the plaintiffs to have sought advice from Dr. Barson in that regard.

With regard to Mr. Meenan's submission that, had the plaintiffs pursued a claim against the [hospital] for carrying out the

post-mortem examination, as they allege, without their consent, they would inevitably have discovered that organs had

been retained by the [hospital] and therefore as the claim with regard to carrying out the post-mortem without consent is

statute barred so also is the claim with regard to the retention of the organs. I do not think that that follows. I would

agree that, had the plaintiffs pursued a claim with regard to carrying out the post-mortem examination without consent in

1988, it is probable that they would have then learned about the retention of organs, but they were under no obligation

to pursue such a claim at that time and I do not accept that, because they failed to pursue such a claim and allowed it

to become statute barred, as I believe it is, thereby depriving themselves of the opportunity to find out that the organs

had been retained, that by the same default they also allowed the claim in respect of the retention of organs to become

statute barred.

Accordingly, I reject the submission that the plaintiffs' claims in respect of the retention of organs are statute barred."

17. I am not persuaded there was any error by the learned High Court judge in his decision on this aspect of the case. Consequently,

I would adopt and affirm this finding.

18. Recoverable Loss?

The next issue to be considered is whether there is a recoverable loss on foot of the retention of the organs. As to the cause of

action, the High Court held:-

"With regard to the submission that the plaintiff had not identified a recoverable loss is concerned; as I understand the

submission, because there was uncontradicted evidence from Dr. Barson and also from Dr. Henry that, in the 1980s, it

was an accepted practice that where there was consent to the carrying out of a post-mortem it was implicit that the

pathologist had permission to remove and retain organs; it follows that, had the plaintiffs' consent to the post-mortem in

this case been obtained, the position of Mr. and Ms. Devlin would be no different than it actually was. That is, that they

would have learnt in the year 2000 that their baby's organs had been retained with all the consequences that that

knowledge involved.

Accordingly, it was submitted by Mr. Meenan that as there would have been no duty on the defendants in 1988 to advise

the plaintiffs that organs would be removed in the course of a post-mortem to which they had consented, the fact that

they did not consent to that post-mortem, which at present I am obliged to accept, made no difference whatsoever,

because with or without consent to the post-mortem they would not have learnt until the year 2000 that organs had

been retained. Even if there had been consent to the post-mortem, the defendants were under no duty to advise the

plaintiffs that organs would be retained at the post-mortem.

In the absence of such a duty there could be no negligence on the part of the defendants which gave rise to a liability in

damages.

However, whatever may have been the practice where consent to a post-mortem was given in the 1980s, I heard no

evidence to suggest that there was any practice when a post-mortem was carried out without the consent of the next of

kin. On the other hand, it was agreed that consent of the parties to the post-mortem of a stillborn should be obtained

before the post-mortem is carried out. I am obliged to accept for the purpose of this application that this consent had

not been forthcoming.

Therefore, I must conclude that the [hospital] was not entitled to carry out the post-mortem and it follows, as night

follows day, that if they were not so entitled that they were equally not entitled to remove and retain organs. In this

regard, the fact that the plaintiffs' claim against the [hospital] arising from them performing the post-mortem without

consent is statute barred does not, in my view, alter the fact that the defendants without consent had no right to carry

out the post-mortem examination and to remove and retain organs.

In the absence of such a right, it seems to me that the [hospital] owed to the plaintiffs a duty not to interfere with the

remains of the deceased. In my view, it is reasonably foreseeable that, had they done so, as they did, it was probable

that the plaintiffs would suffer distress on that account.

Accordingly, if it is a fact that the [hospital] carried out a post-mortem examination on the deceased without the consent

of the plaintiffs, I do not accept that the plaintiffs have not established a cause of action."

Thus, the High Court concluded that it did not accept that the plaintiffs had not established a cause of action.

19. I endorse the analysis of the learned High Court judge. 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. This practice, and implicit acceptance, stemmed from Victorian times. Probably with the best of motives parents were

not "troubled" with the grim reality of a post-mortem and the need to retain organs and samples of tissue. This practice was exercised

with a complete lack of understanding as to the rights of parents in relation to their children, and the retention of organs indefinitely

and without consultation.

The position of parents, their rights, and family rights, and the dignity of the child, are now acknowledged. However, this case stems

from a time when a paternalistic attitude to parents was endemic in hospitals. In this case the parents did not consent to the removal

of their child's organs at post-mortem, and the court is required to consider the consequences.

20. Nervous Shock

'Nervous shock' is a legal term relevant to this case. In Kelly v Hennessy [1995] 3 IR 253 at p. 269 I stated:-

"'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."

It is the plaintiff's submission that she suffered nervous shock, or that the law as to nervous shock should be extended to cover her

situation. The hospital has submitted that the circumstances in which damages for nervous shock are recoverable do not arise in this

case.

21. The relevant facts are that the plaintiff did not learn of the fact that the organs of her baby had been retained until she received

a letter dated 24th November, 2000 from Dr Declan Keane, then Master of the hospital. On learning that the organs of her deceased

daughter had been retained by the hospital the plaintiff, Bridget Devlin, suffered shock and post traumatic stress, a psychiatric illness.

22. The learned High Court judge considered the common law. He referred to Kelly v. Hennessy [1995] 3 I.R. 253, and to the

judgment of Hamilton C.J., which set out circumstances under which damages for nervous shock could be recovered. Hamilton C.J.,

with whom Egan J. agreed, 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, which is 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

High Court judge was of the opinion that the condition was satisfied.

However, the High Court held that the fourth condition, (d), as set down by Hamilton C.J. had not been met. That condition requires

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. The High Court pointed out that there was no evidence that the first named plaintiff suffered any

physical injury or that any other person suffered a physical injury. Thus the High Court concluded that condition (d) was not satisfied

and that therefore the plaintiff was not entitled to recover damages.

23. Counsel for the plaintiffs had submitted in the High Court that the facts in Hennessy 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

[2003] 2 I.L.R.M. 94 were different also but that this Court found favour with Hennessy. Consequently, the learned High Court judge

held that, while most of the conditions set out by Hamilton C.J. were met,

"… it seems to me that the fourth condition laid down by Hamilton C.J. has not been satisfied in this case."

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, and the plaintiffs' claims were dismissed.

24. Issue

The core issue in this appeal is 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? In essence, the query is whether condition (d) as set out by Hamilton C.J. is a requirement of law.

25. The High Court was of the view that Fletcher v. The Commissioners of Public Works [2003] 2 I.L.R.M. p.94 endorsed and

supported the analysis of Hamilton C.J. in Hennessy.

26. Well Established Common Law

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. Byrne v. Great

Southern and Western Railway Company of Ireland (1884) cited at 26 L.R. (Ir)428, and Bell v. Great Northern Railway Company of

Ireland (1890) 26 L.R. (Ir) 428 are referred to in McMahon and Binchy, Law of Torts, 3rd ed., (Butterworths 2000) chapter 17.

27. In Byrne v. Southern and Western Railway Company, Court of Appeal, 1884 (discussed in Bell v. GN Railway Company (1890) 26

L.R. (Ir) 428 at p.p.441 to 442) the plaintiff was superintendent of the telegraph office at Limerick Junction. His office was a small

building at the end of one of the railway sidings, between it and the office there was a buffer. One day, because the railway points

were negligently left open, a train entered the siding and broke down the buffer and the wall of the telegraph office. The plaintiff

heard the noise and saw the wall falling, and "he sustained nervous shock which resulted in certain injuries to his health". The plaintiff

received an award of damages. He described that he got no physical injury but that he got a great fright and shock, and that apart

from the noise of the crash, he heard the shouts of the clerks saying they were killed.

In Bell the plaintiff herself was in a train when part of it became unhooked and reversed with speed down a hill. The plaintiff suffered

severe shock. Her mental health was seriously affected and there was medical evidence that her condition might involve paralysis.

Thus the 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'."

These words could be construed in a broad fashion. Thus, if negligence caused fright, and fright leads to a psychiatric illness, the

nexus may be established. However, the words were spoken in a context and that context is very important. The context was an

accident - rail or car - and of witnesses to that event or its aftermath. Thus the 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.

28. In Mullaly v. Bus Eireann and Anor [1992] ILRM 722 the plaintiff was exposed to traumatic scenes after a road traffic accident

which caused her post traumatic stress disorder. The plaintiff's husband, together with three of their sons, set off by CIE bus from

Limerick to go to watch a soccer match in Midleton. The plaintiff spent the day with her brother and mother in Thurles. She received

a message that there had been a serious bus accident involving her family. The bus had overturned, resulting in three deaths and

injuries to 49 passengers. The plaintiff went to the Regional Hospital in Limerick where two of her sons were being treated. While

there she witnessed some terrifying and appalling scenes. She then continued to Barrington's Hospital where her husband and a son

were hospitalised. Her husband and two of her sons were very seriously injured. Within a week or so it became clear that two of her

sons and her husband would recover. One of her sons was very ill for months and had to undergo several operations. The plaintiff

spent a great deal of time with him. Ultimately, eight months after the accident, he died. The plaintiff suffered post traumatic stress

disorder. It was held that post traumatic stress disorder was covered by the term 'nervous shock', that the plaintiff suffered the

nervous shock as a consequence of the road traffic accident and its aftermath in the hospitals; that there was a legal nexus between

the actions of the defendant causing the accident and its resultant aftermath and her injuries (being the psychiatric illness), and that

the plaintiff was entitled to damages. Thus this was a classic 'aftermath' case.

29. Kelly v. Hennessy [1995] 3 I.R. 253 was also an "aftermath" case. In that case the plaintiff claimed, successfully, damages for

nervous shock which was caused by the negligence of the defendant in the driving of a motor vehicle on 14th April, 1987, which was

involved in a collision as a result of which the plaintiff's husband and two daughters suffered severe personal injuries. The plaintiff was

not involved in the collision but shortly after 9.30 p.m. on the evening was informed by her niece of the fact of the collision and that

her husband and two daughters were seriously injured. The trial judge found that the plaintiff went into shock, and that while being

brought to hospital to see her husband and two daughters she became ill. She saw her family in hospital. She was traumatised. The

post traumatic stress disorder continued up to 1992 and she continued to suffer a depression. On these facts Hamilton C.J. set out

five conditions, see para. 22 above, which he applied, and found the plaintiff entitled to recover damages against the defendant for

nervous shock.

In that case it had been submitted on behalf of the defendant that the cause was not the immediate traumatisation of the plaintiff

but that it occurred over the months after the accident and that the plaintiff was outside the contemplation of the defendant, that

Mulally v Bus Eireann was distinguishable. These submissions were not successful, but they illustrate the fact that the common law

applying liability in negligence from nervous shock to those exposed to the aftermath of an accident is tightly drawn.

30. Fletcher v. Commissioners of Public Works [2003] 2 I.L.R.M. 94 was a case where the facts were of a different nature. It was

heard at the same time as four other appeals. As Keane C.J. pointed out, all five cases arose out of what was admitted to be the

failure of the defendants, as employers, to take proper precautions for the safety, health and welfare of the plaintiffs, their

employees. As a result of that failure, as was conceded by the defendants, the plaintiffs were exposed to significant quantities of

asbestos dust in the course of their employment and, as a further consequence, were exposed to the risk of contracting in later life

the disease of mesothelioma which, when contracted, is potentially fatal. There was evidence in each case from psychiatrists that

the plaintiffs, as a result of their having been informed of that risk, suffered from a recognisable psychiatric disorder. In each case the

High Court found that the defendants were liable to pay damages in respect of the psychiatric illness - which decisions were appealed

to this Court. In giving judgment Keane C.J. referred to Bell and Byrne, and 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.

Keane C.J. stated at p. 105:-

"The circumstances in which damages for nervous shock are recoverable were set out as follows by Hamilton CJ in Kelly –

v- Hennessy: [1995] 3 I.R. 263 …:

1. The plaintiff must establish that he or she actually suffered ‘nervous shock’. This term has been used to describe

‘any recognisable psychiatric illness’ and a plaintiff must prove that he or she suffered a recognisable psychiatric

illness if he or she is to recover damages for ‘nervous shock’.

2. A plaintiff must establish that his or her reasonable 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 a plaintiff must be by reason of actual or apprehended physical injury to the

plaintiff or a person other than the plaintiff …

5. If a plaintiff wishes to recover damages for negligently inflicted nervous shock he must show that the defendant

owed him or her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock.”

Keane C.J. then addressed the issue of whether Fletcher was a nervous shock case. He stated at p.110:-

"The central issue in this case, 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 which was the consequence of his having been negligently exposed to the risk of contracting

mesothelioma. 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: the reasons for that cautious

approach are considered at a later point in this judgment."

Keane C.J. 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 by Hamilton C.J. in Kelly v Hennessy, in other words - provided the conditions stated were met.

31. The central issue in this case is whether the claim of the plaintiff comes 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 is

nonetheless entitled to recover damages.

32. Grief

Grief and sorrow are not a basis upon which to recover damages. There has to be a proven psychiatric illness. That exists in this

case. It is accepted for these proceedings that the first named plaintiff has suffered a psychiatric illness.

33. Event

The common law has 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 [1992] 1 A.C. 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 reflects the common law in Ireland where the 'aftermath' cases either relate to the event, or the situation in its

immediate aftermath.

34. Current Law

It is clear that the common law was stated by Hamilton C.J. in Kelly v Hennessy, with five conditions, subsequently endorsed by

Keane C.J. in Fletcher. On this law the plaintiff is not entitled to succeed because the fourth condition is not met. The learned High

Court judge was correct in his identification and application of the law. On this basis the plaintiff is not entitled to succeed and the

appeals would be dismissed.

35. Policy

However, 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 is 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.

In Fletcher the issue as to whether the law should be extended also arose for consideration. This Court refused to do so. Keane C.J.

stated that the law in this jurisdiction should not be extended by the courts so as to allow the recovery by those plaintiffs of

damages for psychiatric injury resulting from a fear of contracting a disease because of their negligent exposure to health risks by

their employers, where the risk was characterised by their medical advisers as very remote.

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, those cases relate to persons perceiving an accident or its immediate aftermath.

This is a tragic case. In essence it arises because of the receipt of bad and sad news in a letter from the hospital. It is a hard case.

The parents are entitled to deepest sympathy for their loss. However, the law as it stands does not entitle them to damages and I

would not extend the law. Any such development would give rise to uncertainty in the law of liability generally and to potentially

unforeseeable repercussions. Consequently I would dismiss this aspect of the appeal also.

36. Conclusion

For the reasons given I would dismiss the appeal and affirm the order of the High Court dismissing the action.

37. This judgment is a decision of law. It should not be read as an endorsement of the practice, now abandoned, of the hospital.

Post-mortems are part of the continuing care of a patient. They inform of the cause of death. This may be of importance to the

family at the time and in the future, to any other children they may have, and to the community in general. Post-mortems are also

important in assisting research, education, and training of the nursing and medical professions.

The hospital's practice in relation to post-mortems of children in the 1980s was rooted in times long past. Probably with the best of

motives, the policies were paternalistic and inappropriate. While it may have been thought kind not to trouble or disturb the parents,

the decision to be made as to a post-mortem and their child's body is theirs to make. Post-mortems will usually involve the taking of

organs, so that identification of the cause of death and the nature of the illness are determined. This information may have been

considered too stressful to be given to parents. This was a misunderstanding, by the medical profession, of the rights of the parents.

While parents may choose not to receive full information at the time, they must be given that choice when they are requested to

authorise a post-mortem of a child. In the tragic and stressful situation of the death of a child parents may not wish to receive all the

information at that time, but they are entitled to receive it specifically in relation to their child then, or later, or to receive it generally

from printed information.

In the midst of the dreadful tragedy that is a child's death, parents and the community should be fully informed of the benefits which

flow from the authorisation by parents to permit a post-mortem.