The recent decision of the Supreme Court in Devlin –v– National Maternity Hospital 2007 IESC 50 (14 November 2007) makes disappointing reading for the many hundreds of parents whose children’s organs were wrongfully removed and retained by hospitals in this State, in past decades, during the post mortem process. Effectively, the decision of the Supreme Court heralds the death knell for organ retention claims. Thus many hundreds of parents, who have suffered because of overly paternalistic and defective hospital policies which existed from the 1970’s onwards, are now left with no legal remedy and are not entitled to be compensated for any psychiatric injuries suffered.
In Devlins case in May 1988 a baby girl was stillborn. The hospital unlawfully carried out a post mortem without the knowledge and against the express wishes of her parents. Later the parents were led to believe performing a post mortem was standard practice within the hospital. They were not informed that many organs had been removed and were retained by the hospital. Some 12 years later following upon the extensive media publicity surrounding the retention of organs, Mr Devlin made discrete enquiries, through his solicitor (not wishing to upset his wife), as to whether his daughters organs might have been retained. The hospital informed Mrs Devlin personally by letter that the organs had in fact been retained and continued to be retained by the hospital up to that time. Consequent upon this shocking information, Mrs Devlin suffered “nervous shock” i.e. post traumatic stress disorder. She instituted the proceedings which were ultimately dismissed following the Supreme Court’s decision last November.
Damages for Nervous Shock (i.e. pure psychiatric injuries unaccompanied by physical injury) have been recoverable for over 100 years in this country. Indeed it is fair to say that the Irish tort law was ahead of other common law jurisdictions and two leading 19th Century Irish cases placed the Irish jurisprudence in the vanguard of developments of the law in this area. In the first case, Byrne –v– Southern & Western Railway Company (1884) 26 LR (IR) a train, having sped into a siding after a railway point had been negligently left open, crashed through the wall of a telegraph office at Limerick junction. On hearing the noise and seeing the wall collapse, the Plaintiff, a railway employee working in the office “sustained a nervous shock which resulted in certain injuries to his health”. He sustained no physical injuries but suffered “great fright and shock”. The Plaintiff obtained a substantial award of damages.
In the second case, Bell –v– Great Northern Railway Company of Ireland (1890) 26LR(IR)428 the Court with a perception of the relationship between mind and body well ahead of its time followed Byrnes case and from that time onwards, in Ireland, damages for pure nervous shock were recoverable. These two Irish cases were cited with approval in subsequent leading English cases.
One hundred years later in Kelly –v– Hennessey (1995) 3IR 253 the Plaintiff’s husband and two daughters suffered severe injuries in a motor accident. The Plaintiff was informed by telephone of the incident and suffered shock which was then aggravated by the sight of her injured family in hospital. Hamilton CJ set out five conditions to be satisfied in order to succeed in an action for nervous shock:
- The Plaintiff must establish that he/she actually suffered “nervous shock”. This term has been used to describe any recognisable psychiatric illness.?
- A Plaintiff must establish that his/her recognisable psychiatric illness was shock induced.
- A Plaintiff must prove that the nervous shock was caused by a Defendants act or omission.
- The nervous shock sustained by the Plaintiff must be, by reason of actual or apprehended physical injury to the Plaintiff or a person other than the Plaintiff
- The Plaintiff 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.
The above criteria have been followed in many subsequent Irish cases and were cited with approval in the subsequent Supreme Court decisions in Fletcher and Devlin. I doubt if Hamilton CJ envisaged when setting out the above five criteria that he was effectively going to rigidly set the boundaries of the law in this area for decades to come and was going to set Irish law on a more restrictive path than the UK law. However, following Devlins case it would appear that the test formulated by Hamilton CJ in respect of a specific set of “aftermath” circumstances now effectively governs all cases of pure “nervous shock” irrespective of their particular facts.
In Devlin, Denham J applied and approved the criteria set out in Kelly and Hennessey. The Court held that because Mrs Devlin’s negligently inflicted, foreseeable nervous shock was not caused by reason of the actual or apprehended physical injury to the Plaintiff or a person other than the Plaintiff therefore she was not entitled to damages. Although Mrs Devlin was found to have satisfied all of the other criteria in Kelly and Hennessey. Her case failed condition 4 as the wrongful desecration of the remains of her stillborn child against her express wishes did not constitute actual or apprehended injury to either herself or another “person”.
The rationale for the Court’s decision would appear to be based on policy grounds and is summarised in the following extract from the Judgment of Denham J:
“It is clear that the common law was stated by Hamilton CJ in Kelly v Hennessey with five conditions subsequently endorsed by Keane CJ in Fletcher. On this law the Plaintiff is not entitled to succeed because the fourth condition is not met…. On this basis the Plaintiff is not entitled to succeed and the appeals would be dismissed. However, Counsel for the Plaintiff pressed the Court if it found that the current law did not apply to extend the general principles of the law of negligence. This is a matter of significant general importance. Such a decision could have serious repercussions. In considering extension of the common law liability for nervous shock policy issues arise…… 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….. It is a hard case. 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.”
It is perhaps unfortunate that the Supreme Court’s Judgment does not deal at all with the line of UK cases of Owens –v– Liverpool Corporation (1939) 1QB394 or Athia –v– British Gas (1987) 3AER 455 despite both of these cases forming a major part of the Plaintiff’s submissions on Appeal in Devlin’s case. The facts and the Judgment in both these cases illustrate that the UK Courts approach nervous shock cases in a far more flexible and sympathetic manner. In Owens, a family of mourners were deeply shocked when the hearse, which bore the remains of a family member, collided with a tramcar causing the coffin to be upset. The Court of Appeal found that the right to recover damages was not limited to cases in which apprehension as to a persons human safety was involved.
Similarly in the case of Athia the Plaintiff was entitled to recover damages solely for mental injury sustained as a result of a shock she sustained on seeing her unoccupied home and valued contents being destroyed by fire. The Defendants argued that as a matter of policy that the law should not allow Mrs Athia to recover because her shock arose from fear of injury to her property rather than another person. However such an approach was explicitly rejected by Bingham LJ in the Court of Appeal:
“I should not for my part erect the boundary stone… it would not be long before a case would arise so compelling on its facts as to cause the stone to be moved to a new more distant resting place. The suggested boundary line is not moreover one that commends itself to me as either fair or convenient…
…I do not think a legal principle which forbade recovery in these circumstances could be supported. The only policy argument relied on as justifying or requiring such a restriction was the need to prevent a proliferation of claims. The familiar floodgates argument. This is not an argument to be automatically discounted but nor is it I think an argument which can claim a very impressive record of success. All depends on one’s Judgment of the likely result of a particular extension of the law.”
It would now appear that there is a marked divergence in the law relating to nervous shock between Ireland and the UK. We have somehow gone from being in the vanguard of the development of the law in this area 100 years ago to now being considerably more restrictive and less sympathetic than the approach being adopted by the UK. Effectively the Supreme Court has decided on policy grounds to fix the boundary stone and not to expand or develop the law in this area in favour of having “certainty”. It is difficult to imagine how the “floodgates” could have been opened to many more claims given that a Plaintiff (such as Mrs Devlin) would still have to satisfy all the other control mechanisms and criteria set out in Kelly and Hennessey. Undoubtedly we will have to wait a considerable time before we find a case “so compelling on its facts” to tempt the Supreme Court to re-visit the matter and find out whether they would ever be prepared to move the boundary again.
Augustus Cullen Law
11 September 2008