The High Court’s decision in Germaine v Day [2024] IEHC 420 marks a significant moment in the development of Irish jurisprudence on nervous shock claims, particularly in the context of medical negligence. Whilst the plaintiff’s claim was ultimately unsuccessful, the judgment provides a detailed and instructive analysis of the Kelly v Hennessy criteria and the limits of liability for psychiatric injury suffered by relatives of patients.
Legal framework: Kelly v Hennessy
The leading authority on nervous shock in Ireland remains Kelly v Hennessy [1995] 3 IR 253, which sets out five criteria for recovery of damages:
- A recognisable psychiatric illness
- Illness must be shock-induced
- The shock must be caused by the defendant’s act or omission
- The shock must arise from actual or apprehended physical injury to the plaintiff or another person
- The defendant must owe the plaintiff a duty of care not to cause such injury.
These criteria have been applied in various contexts, including road traffic accidents and medical negligence, but their application remains stringent.
Facts of the case
- Carmel Germaine, the plaintiff, was the widow of Thomas Germaine, who had previously suffered from organising pneumonitis.
- In October 2018, a chest x-ray revealed an opacity that was missed by the reporting radiologist.
- The hospital admitted a breach of duty, acknowledging that the cancer should have been diagnosed earlier. However, by October 2018, the cancer was already incurable, and earlier diagnosis would not have altered the treatment or prognosis.
- On 23 December 2018, the plaintiff witnessed her husband’s rapid deterioration, including severe physical symptoms.
- He was diagnosed with high-grade non-small cell carcinoma on Christmas Eve 2018 and died on 14 February 2019.
- The plaintiff claimed she suffered an adjustment disorder as a result of witnessing this deterioration and the late disclosure of the terminal diagnosis.
Court’s analysis
Criterion 1: Recognisable psychiatric illness
The Court accepted that the plaintiff suffered a recognisable psychiatric illness (an adjustment disorder), satisfying the first criterion.
Criterion 2: Shock-induced illness
The Court found that the deterioration witnessed by the plaintiff was gradual, not a sudden shocking event. The legal requirement for a discrete, calamitous event was not met. The plaintiff’s psychiatric expert described the illness as precipitated by events around 23 December, but the Court held this did not equate to the legal concept of shock.
Criterion 3: Causation
The breach of duty did not cause the deterioration or the plaintiff’s illness. The cancer’s progression was inevitable, and the plaintiff’s argument that earlier diagnosis would have altered her experience lacked sufficient causal connection.
Criterion 4: Actual or apprehended physical injury
The fourth criterion from Kelly v Hennessy requires that the nervous shock sustained by a plaintiff must be by reason of actual or apprehended physical injury to the plaintiff or another person.
In Germaine v Day, Ms. Justice Egan accepted that the plaintiff had witnessed her husband's physical deterioration and death from metastatic lung cancer. This was deemed to constitute actual physical injury to another person. Therefore, the Court did not find fault with this criterion, and it was not a point of failure in the plaintiff’s claim.
Criterion 5: Duty of Care
The Court conducted a detailed analysis of whether the hospital owed a duty of care to the plaintiff. Applying the Glencar test (Glencar Explorations Plc v Mayo County Council No.2 [2002] 1 IR 84 (“Glencar”), it found that while foreseeability might be satisfied, proximity was not. The plaintiff was not a patient, and the hospital had not assumed responsibility for her well-being.
The Court referenced Paul & Anor v Royal Wolverhampton NHS Trust [2024] UKSC 1, which held that doctors do not generally owe a duty of care to relatives of patients. It also considered public policy concerns, including the risk of uncontrolled liability and conflicts with doctor-patient confidentiality.
Outcome
The Court dismissed the plaintiff’s claim, finding that she failed to satisfy criteria 2 (shock), 3 (causation), and 5 (duty of care). While expressing sympathy for her suffering, Ms. Justice Egan reaffirmed the strict boundaries of nervous shock claims under Irish law.
Implications for future claims
This decision reinforces the high threshold for nervous shock claims in medical negligence cases. It aligns with previous decisions such as Morrissey & anor v HSE & ors [2019] IEHC 268 and Mitchell v HSE [2023] IEHC 394, where relatives of patients were denied recovery of damages due to lack of proximity or causation.
The judgment also highlights the limited scope of duty of care owed by healthcare providers to non-patients and the importance of distinguishing clinical sympathy from legal liability.
Conclusion
Germaine v Day provides clarity on the application of the Kelly v Hennessy criteria and underscores the challenges which plaintiffs face in nervous shock litigation arising from medical negligence. While the law remains sympathetic to genuine psychiatric injury, it demands rigorous proof of causation, proximity, and a sudden shocking event. Any expansion of liability in this area will require intervention from the Supreme Court or legislative reform.
