The recent judgment in Mitchell v HSE  IEHC 394 has upheld the Morrisey decision and confirms that there is no duty of care owed to relatives of those who participate in a screening programme. In delivering the judgment of the High Court, O’Connor J also stated that causes of action grounded in nervous shock claims are not defeated by section (48) of the Civil Liability Act 1961 as against surviving relatives who were previously compensated for solatium where a distinct common law cause of action or otherwise exists.
This case arose from the tragic death of 'A' in April 2015, who died due to metastatic cervical cancer. In 2020, the parents of the deceased issued proceedings in respect of the nervous shock they alleged that they suffered as a result of:
- Learning their daughter had cancer in January 2014,
- Accompanying their daughter through her trauma when she lost her pregnancy due to cancer in March 2014,
- Experiencing the death of their daughter in April 2015,
- Learning that her death had been unnecessary in 2018 when there was a significant delay in disclosing available information about the nature of the measures which ought to have been implemented for her health and survival.
The proceedings were instituted on 11 May 2020 and after a variety of procedural and interlocutory hurdles were disposed of, the defendant issued a Notice of Motion for a trial of preliminary issues.
In his fourth interlocutory ruling on 24 May 2023, O’Connor J directed the following preliminary issues be tried before hearing further evidence:
- “Whether the plaintiffs are barred from issuing and prosecuting these proceedings because they were listed as statutory dependants in the 2018 proceedings;
- Whether the HSE owed a duty of care to the plaintiffs by virtue of the Morrissey judgment in respect of any or all of the six incidents which are alleged to have caused “nervous shock” to the plaintiff.”
Revisiting of Morrisey Judgment
In his judgment, O’Connor J revisited the High Court judgment of Cross J in Morrisey where it was held that no duty of care is owed by the screening service providers to patient’s relatives and that even if such a duty did exist on the basis of proximity and reasonable foreseeability, it would not be imposed on public policy grounds.
This revisit came on foot of submissions by the plaintiff that there were “substantial reasons for believing that the [Morrisey] judgment was wrong.” The plaintiff referred to Re Worldport  IEHC 189 where it held that courts of similar jurisdiction can depart from each other’s jurisprudence where it is clear the decision was not based on the relevant authorities, where there was a clear error or where the judgment was delivered a sufficiently lengthy period in the past so the relevant jurisprudence may have since advanced.
The Court acknowledged that the Morrisey judgment was expedited given the declining health of Mrs Morrisey but ultimately held that the policy grounds comment of Cross J prevails and in circumstances where there has been no contradictory jurisprudence in this regard since then, that there was no reason to deviate from Morrisey.
O’Connor J observed that Cross J did not believe that a reasonable person could have concluded that if they negligently misread the slides or failed to tell Mrs Morrisey of the results, that Mr Morrisey would suffer a recognisable physical and mental injury but ultimately acknowledged his emphasis placed on the Kelly v Hennessy requirement that the plaintiff must show that the defendant owed them a duty of care to not cause them a reasonably foreseeable injury in the form of nervous shock. In this instance, the High Court noted the possible policy implications on foot of such a judgment in favour of the plaintiff and stated that it was open and more suitable for the legislature to provide for such a duty of care.
In analysing the intervening period consideration from Worldport, the High Court looked at the Supreme Court judgment in Morrisey where O’Donnell J, stated that:
“. .. . [i]t seems to me that any further significant evolution in this area is one that can only be achieved by comprehensive legislation rather than by an evolution in the case law. I appreciate that the current situation does contain some anomalies, but the risk of creating further anomalies by a piecemeal approach on the part of the courts involving a radical alteration in the underlying common law assumption in this area is one which in my view, should be avoided”.
Although O’Donnell J made this comment in the context of claims for loss of expected services, the High Court endorsed this line of reasoning in the context of nervous shock claims and held that there were no substantial grounds to deviate from Morrisey and that it would be for the legislature to intervene in order to bring around such a reform, not the judiciary.
Section 48(2) of the Civil Liability Act 1961
Irrespective of the High Court’s conclusion in relation to the validity of Morrisey, O’Connor J notably held that section 48(2) of the 1961 Act, which states that “only one action for damages may be brought against the same person in respect of the death,” does not bar statutory dependants of those who are fatally injured and who receive solatium compensation from issuing proceedings based on separate causes of action resulting from that fatal injury.
O’Connor J referred to the maxim expressio unius est exclusio alterius and stated that should such a duty have existed in this case, the plaintiffs would not be barred from prosecuting these proceedings by virtue of s. 48 (2) of the 1961 Act.
The High Court judgment can be read as a reaffirmation of the validity of Morrisey and that in circumstances where Morrisey continues to operate as the leading case in this regard, that the test for nervous shock in Kelly v Hennessy will not be met as the policy grounds against such incrementalism defeat the other limbs of the test. Moreover, the findings of both O’Connor J in this decision and Cross J in the Morrisey judgment indicate that if there were no policy grounds to defeat such a duty of care, that the reasonable foreseeability limb appears to be an insurmountable hurdle for surviving relatives who allege negligence in respect of a screening programme.
In addition, the comments of O’Connor J in relation to section 48(2) of the 1961 Act are of note as they indicate that those who are compensated for solatium claims are not barred from issuing separate proceedings where a distinct cause of action exists. This clarification and affirmation of the decision in Morrissey is to be welcomed.
Read more about this subject on our previous publication '‘Dunne’ principles remain the appropriate legal test for medical negligence in Ireland'Back to Full News
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About the Authors
Mary is a partner and Head of the Healthcare team at Hayes solicitors. She specialises in professional indemnity defence litigation and in particular dealing with high value clinical negligence claims. Mary has extensive experience in civil litigation, acting for insurance companies, indemnifiers and plaintiffs.
Kevin is a Legal Executive in the Healthcare Litigation Team. He works closely with partners, associates and solicitors in medical negligence defence claims including high value catastrophic injury cases. He liaises with clients, counsel and experts in preparing cases for trial and for settlement negotiations.