Psychiatric Injury (Nervous Shock) in Irish Tort Law

What psychiatric injury (nervous shock) means

The law allows recovery for negligently-caused psychiatric injury, but only within limits. Courts have been cautious because of the risk of feigned or exaggerated claims, the difficulty of measuring psychiatric damage, and the floodgates concern.

The plaintiff must prove a recognisable psychiatric illness — not mere grief, distress or upset — brought on by shock, and must satisfy the duty requirements. In Denham J's words in Kelly v Hennessy, nervous shock is recognised legal terminology for a medically recognised psychiatric illness resulting from shock. Early Irish authority accepted such claims: in Byrne v Great Southern and Western Railway Co of Ireland a plaintiff recovered for shock when a train struck his office, and Bell v Great Northern Railway Co confirmed that mental injury is actionable even without physical impact.

The Kelly v Hennessy five criteria

Kelly v Hennessy [1995] 3 IR 253 is the leading Irish authority. Hamilton CJ set out five criteria the plaintiff must establish:

• a recognisable psychiatric illness (medically diagnosable — for example post-traumatic stress disorder, clinical depression or an anxiety disorder — not ordinary grief);
• the illness was shock-induced — a sudden, traumatic assault on the mind, not the gradual accumulation of grief or stress;
• the shock was caused by the defendant's act or omission;
• the shock arose by reason of actual or apprehended physical injury to the plaintiff or to another person; and
• the defendant owed a duty of care not to cause a reasonably foreseeable injury in the form of psychiatric illness.

The fifth limb runs through Glencar: whether a duty exists is tested by the three-stage enquiry of foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty. This was confirmed for the fifth limb by the Court of Appeal in Sheehan v Bus Éireann [2022] IECA 28. Proximity here is assessed by relational, temporal and spatial closeness to the traumatic event.

Recognisable illness versus ordinary grief

The threshold issue in most problems is whether the plaintiff crossed from normal grief into a recognised psychiatric illness. This is provable only by expert medical evidence. Ordinary grief and sorrow, however profound, does not qualify: in Larkin v Dublin City Council the grief-versus-psychiatric-illness distinction was reinforced, a point also illustrated by Tormey v Lenihan and Ahern v Moore. Without medical evidence of a condition such as post-traumatic stress disorder or depression, a nervous-shock claim does not get off the ground.

Immediate versus aftermath victims

Irish law does not adopt the English rigid primary/secondary victim classification. The preferred Irish vocabulary is immediate victim versus aftermath victim.

A primary/immediate victim — someone within the zone of danger, in fear for their own safety — can generally recover on ordinary negligence principles without forcing every fact through the Kelly filter. In A v C, a mother fearing for her child recovered on ordinary principles rather than under Kelly. The Kelly criteria bite most obviously for aftermath victims. Recovery by an aftermath victim was allowed in Mullally v Bus Éireann, where a mother who learned of her family's crash recovered because the injury was reasonably foreseeable; in Cuddy v Mays a hospital porter who met family road-accident victims in A&E recovered, Kearns J confirming there are no English control mechanisms in Ireland. The rejection of the English classification is confirmed in Curran v Cadbury (Ireland) Ltd, Cuddy v Mays and Sheehan v Bus Éireann.

The policy ceiling: Fletcher and irrational fear

Fletcher v Commissioners of Public Works [2003] 1 IR 465 marks the outer policy limit. An employee negligently exposed to asbestos developed a reactive anxiety neurosis from fear of the very remote risk of mesothelioma.

Even accepting the injury was reasonably foreseeable, the Supreme Court refused recovery on policy grounds — it was not just and reasonable to impose liability for psychiatric injury flowing from an objectively irrational fear of a future disease the plaintiff had not contracted. Fletcher is the authority for the fair, just and reasonable ceiling on psychiatric-injury claims. A case where the risk is substantial, or where the disease has already been contracted, can be distinguished.

The Irish–English distinction

English control mechanisms are treated as persuasive policy material only, not Irish law. Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 established English control mechanisms for secondary victims — close ties of love and affection, proximity in time and space, and perception by one's own senses — but these are expressly not Irish law. Page v Smith [1996] 1 AC 155 states the English primary-victim rule that psychiatric injury need not be separately foreseeable if physical injury was. In Irish answers these cases should be cited as policy, not as rule, and 'primary/secondary' should not be used as if it were Irish law — the correct terms are 'immediate/aftermath'.

Key authorities

The leading authorities relied on in the source module (a fuller case table is in the paid module):

• Kelly v Hennessy [1995] 3 IR 253 — Leading Irish authority; the five criteria for recoverable nervous shock.
• Fletcher v Commissioners of Public Works [2003] 1 IR 465; [2003] 2 ILRM 94 — No recovery for psychiatric injury from irrational fear of a remote future disease.
• Sheehan v Bus Éireann [2022] IECA 28 — Ireland has not adopted primary/secondary; fifth Kelly limb worked through Glencar.
• Mullally v Bus Éireann [1992] ILRM 722 — Aftermath victim (mother learning of family crash) recovered where injury foreseeable.
• Cuddy v Mays [2003] IEHC 103 — Hospital porter meeting family accident victims recovered; no English control mechanisms.
• A v C [2007] IEHC 120 — Immediate/primary victim recovered on ordinary negligence principles, not Kelly.
• Larkin v Dublin City Council [2008] 1 IR 391 — Reinforces the grief versus recognisable psychiatric illness distinction.
• Bell v Great Northern Railway Co (1890) 26 LR (Ir) 428 — Shock / mental injury actionable though there was no physical impact.
• Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 — English control mechanisms for secondary victims; persuasive only, not Irish law.
• Page v Smith [1996] 1 AC 155 — English primary-victim rule; persuasive only in Ireland.

Applying the Kelly v Hennessy criteria

1. Confirm a recognisable psychiatric illness on expert medical evidence — distinguish ordinary grief or distress (criterion 1).
2. Show the illness was shock-induced by a sudden, traumatic event, not the gradual accumulation of grief or stress (criterion 2).
3. Establish the shock was caused by the defendant's act or omission (criterion 3).
4. Show the shock arose by reason of actual or apprehended physical injury to the plaintiff or another person (criterion 4).
5. Establish a duty of care under Glencar: foreseeability, relational/temporal/spatial proximity, and fair, just and reasonable (criterion 5).
6. Classify the plaintiff as an immediate victim (zone of danger; ordinary principles, A v C) or an aftermath victim (full Kelly filter).
7. For fear-of-future-disease facts, apply Fletcher as the policy ceiling, and treat English cases as persuasive policy only.

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