by Darren Costello December-16-2021 in Healthcare Law, Litigation & Dispute Resolution

The Court of Appeal overturned the decision made by the High Court in Warren Harford v Electricity Supply Board [2020] IEHC 752 in which the High Court had made an award of €83,000 in damages for nervous shock. The central question addressed by the Court of Appeal was whether damages could be awarded for nervous shock where psychiatric injury is caused by an appreciation that a physical injury had been narrowly avoided.


Case Facts

Mr Harford, an ESB network technician, was given the task of repairing a streetlight in 2014. During the course of the repair work he handled a medium voltage 10,000 kilowatt electric cable, which at the time he believed was a low voltage cable. Mr Harford claimed that he suffered a psychiatric injury as a result of the shock of realising that he could have been caused serious injury or death. The ESB admitted negligence in respect of the equipment and training provided to Mr Harford but contested liability for nervous shock.


The Law

The legal test for recovery of purely nervous shock was set out by the Supreme Court in Kelly v Hennessy1:  

  • Did the plaintiff suffer a recognisable psychiatric illness?
  • Was the psychiatric illness shock induced?
  • Was the nervous shock caused by the defendant’s negligence?
  • Was the nervous shock sustained by reason of an actual or apprehended physical injury to the plaintiff or a person other than the plaintiff?
  • Did the defendant owe the plaintiff a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock?


Court of Appeal decision

The Court of Appeal allowed the appeal on the basis that Mr Harford had not established the 2nd and 4th elements of the Kelly v Hennessy test. Mr Justice Noonan provided a comprehensive analysis of the relevant case law and he noted that the requirement for a sudden calamitous event has consistently been held to be a prerequisite for recovery for purely psychiatric injury. The Court found that Mr Harford’s injury was caused by an after the fact realisation that injury had been avoided and to impose liability on the ESB would extend the existing case law, which could give rise to considerable practical problems and uncertainty.


Analysis

The decision of the Court of Appeal provides a useful update on the courts approach to nervous shock claims in Ireland. It confirms that the appropriate test for nervous shock is still the test laid down in Kelly v Hennessy and it provides helpful clarification on the application of the test. While the Court of Appeal was clearly sympathetic towards Mr Harford, it held that it was bound by the Kelly V Hennessy decision and that it would ultimately be a matter for the Supreme Court to determine, bearing in the mind policy considerations that might arise, whether to extend the law in respect of nervous shock.


For further information or for any queries in relation to any aspect of healthcare law, please contact Darren Costello dcostello@hayes-solicitors.ie or any member of our Healthcare Law team

1 [1995] 3 IR 253

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