THE HIGH COURT 
2001 2606P

BETWEEN/

DECLAN CUDDY
PLAINTIFF

AND

KEVIN MAYS, PATRICK WALSH, LIAM TROY,
FEARGAL CONROY AND CARMEL MOLONEY

DEFENDANTS

Judgment of Mr. Justice Kearns delivered the 28th day of November, 2003.

	This is a claim for damages for nervous shock suffered by the plaintiff consequent upon a road traffic accident which occurred on the 13th June, 1998 at Clonboyne, Co. Laois.
	On the evening of that day, a motor car, owned and driven by one Matthew Peters, collided with the back of a trailer attached to a tractor.  In turn, this vehicle, which contained nine occupants, was rear ended by another car driven by the fourth named defendant.  Five people travelling in Mr. Peters’ car were killed in the tragedy, including Raymond Cuddy, the plaintiff’s brother.  His sister Jackie was also a passenger in the Peters’ vehicle and suffered extremely serious and life-threatening injuries.  All of the other ‘primary victim’ occupants in the motor car were well known to the plaintiff, either as cousins or lifelong family friends.  All lived and grew up together in the locality where the accident occurred.
	At the time of the accident the plaintiff, who was born on the 19th May, 1978, worked as a porter at the General Hospital in Portlaoise.   He had the misfortune to be actually on duty that night and was in the Casualty Unit when the ambulances containing the victims, three of whom were already dead, arrived at the hospital.
	When the first ambulance arrived, Mr. Cuddy assisted but did not recognise that one of those seriously injured in the ambulance was his cousin, Feargal Hanlon.  He died a few days later.  The second ambulance brought another cousin, Lorraine Bowe, who was strapped to a spinal board.  She subsequently died.  He also recognised the other three patients in the ambulance.  He was told at this point that his brother, Raymond, was involved in the accident but was not told that he had died.  However, having spoken with the ambulance driver, he realised that his brother was likely to be one of the deceased.  
	The plaintiff was advised to leave Casualty by a member of nursing staff, due to his relationship to the people coming in.  He telephoned his parents to come to the hospital.  However, Mr. Cuddy was asked by Gardaí to help identify all nine persons involved in the accident.  This involved going to the mortuary to identify the deceased.  He was especially distressed by the condition in which he found his brother, and indeed Mr. Peters, who had horrific facial injuries.  His sister, Jackie, had head injuries and multiple orthopaedic injuries of the most severe kind.
	The three persons who were dead on admission were Aoife Carroll, Matthew Peters and the plaintiff’s brother, Raymond Cuddy.  Two others, Feargal O’Hanlon and Lorraine Bowe, died some days later.
	The scene at the hospital, which had been having a quiet evening up to the time of these post-accident admissions, was a scene of devastation.  Remarkably, the plaintiff appears to have kept and maintained his composure and professionalism throughout the events of the night and actually travelled with his seriously injured sister to Beaumont Hospital early the following morning.  He maintained his initial composure through a period of hours during which he witnessed horrific injuries, where at least one of those injured was screaming in pain and distress and where frantic attempts were being made to save the lives of others. 
	It is in no way surprising that the plaintiff thereafter was severely traumatised, as indeed were many other people who were present either at the scene of the accident or afterwards in the hospital, including Garda Smollen, the investigating Garda, who was so traumatised he was forced to take a year’s absence from work in consequence.  It is not disputed by the defendants that the plaintiff was a secondary or ‘aftermath’ victim of the accident and that he suffered nervous shock, as the same is understood in law, as a direct consequence of the events which he witnessed.
	The only issues in the case are, firstly, to determine if the defendants are liable for damages to the plaintiff, it being contended on behalf of the defendants that it was not foreseeable that the plaintiff would be working on the night in question as a porter in Portlaoise General Hospital and, secondly, that in any event, the category of persons entitled to maintain claims as aftermath or secondary victims for nervous shock sustained, should not be extended or deemed to include a brother or more distant relative of the other person injured or killed in an accident.  
	The law in this area has been addressed in a number of Irish cases in recent years, including Mullally v. Bus Éireann & Anor. [1992] I.L.R.M. 722, Kelly v. Hennessy [1995] 3 I.R. 253, Curran v. Cadbury (Ireland) Ltd. [2000] 2 I.L.R.M. 343, and most recently by the Supreme Court in Fletcher v. Commissioners of Public Works in Ireland [2003] 2 I.L.R.M. 94.
	The law, so fully reviewed by Judge McMahon in Curran  and by Geoghegan J. in Fletcher, is still in a state of some uncertainty, not only in Ireland, but also in the United Kingdom and Australia, as the careful and comprehensive review by both Irish judges in each of the cases manifestly demonstrates.  In reviewing the authorities Geoghegan J. paid particular regard to five cases in particular, McLoughlin v. O’Brian [1983] 1 A.C. 410, Jaensch v. Coffey [1984] 155 C.L.R. 549, Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310, Page v. Smith [1996] 1 A.C. 155 and White v. Chief Constable of South Yorkshire Police [1999] 2 A.C. 455 (otherwise known as the ‘Frost case’.
	In those cases, lengthy and detailed consideration was given to various legal concepts which bear in on this issue, including foreseeability, control mechanisms for limiting the category of persons entitled to recover, the circumstances in which recovery can take place, the reasonableness of the imposition of a duty of care and questions of public policy which may be taken into account by judges in determining whether or not it is appropriate in any given case to make an award in damages.
	While it was intimated during the course of the hearing before this Court that it would be ‘helpful’ to have further clarification in Ireland of the legal principles involved, and that the instant case could be seen as some sort of test case, the parties did not bring in any written submissions and the legal issues were addressed in the course of relatively brief oral submissions made at the conclusion of the evidence in this case.  To that extent one	 could not say that all aspects were debated or argued to the fullest degree.  However, I am satisfied that the facts of this particular case enable me to decide and conclude the matter on the simple authority of the Supreme Court decision in Kelly v. Hennessy and that if further elaboration of the law is deemed necessary or appropriate, that further debate should take place in the Supreme Court by means of an appeal from this decision.
	The circumstances in which damages for nervous shock are recoverable were set out as follows by Hamilton, C.J. in Kelly v. Hennessy [1995] 3 I.R. 253, at pp. 258-9:-
“1.  The plaintiff must establish that he or she actually suffered ‘nervous shock’.  This term has been used to describe ‘any recognisable psychiatric illness’ and a plaintiff must prove that he or she suffered a recognisable psychiatric illness if he or she is to recover damages for ‘nervous shock’.
2.  A plaintiff must establish that his or her recognisable psychiatric illness was ‘shock induced’.
3.  A plaintiff must prove that the nervous shock was caused by a defendant’s act or omission.
4.  The nervous shock sustained by a plaintiff must be by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff.
5.  If a plaintiff wishes to recover damages for negligently inflicted nervous shock he 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.”

	In the instant case, the defendants accept that conditions 1 – 4 have all been fulfilled and the submissions in defence were entirely directed to the fifth consideration listed by Hamilton J.
	Firstly, a submission was made that it was not reasonably foreseeable to a negligent defendant that a brother of one person killed and another injured in the same accident would happen to be present at the nearby hospital when the victims were admitted.
	This point, it seems to me, can be quickly dealt with.  There can, in my view, be no possible basis for excluding the plaintiff on any such grounds.  This is not a case where the plaintiff claims qua employee or rescuer.  His evidence to this Court satisfies me that during the two and a half years during which he worked in Casualty, he was frequently exposed, without suffering nervous shock, to the experience of dealing with road traffic accident victims.  His employment circumstances per se have nothing to do with the onset of nervous shock.  His injury was brought about partly because of his temporal and spatial proximity to the horrific sights, but was triggered or caused because of his relationship and intimate knowledge of those killed and injured in the collision.  Had he not been present on the night in question in his capacity as a porter,  he would almost certainly have come to the hospital in any event, as his parents did, on hearing the news that his brother and sister had been involved in this terrible accident and would, as a matter of probability have been exposed to most, if not all, of what he did actually see and experience.  
	The defendants’ central point, however, is that policy considerations should persuade the Court not to allow a recovery of damages at the level of relationship which existed between the parties in the instant case, it not being a case of husband and wife or parent and child.  Heavy reliance was place on the ‘control mechanisms’ emphasised by Lord Wilberforce in McLoughlin v. O’Brian when he stated (at pp. 421-422):-
“But, these discounts accepted, there remains, in my opinion, just because ‘shock’ in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation upon the extent of admissible claims.  It is necessary to consider three elements inherent in any claim:  the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused.  As regards the class of persons, the possible range is between the closest of family ties – of parent and child, or husband and wife – and the ordinary bystander.  Existing law recognises the claims of the first: it denies that of the second, either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large.  In my opinion, these positions are justifiable, and since the present case falls within the first class, it is strictly unnecessary to say more.  I think, however, that it should follow that other cases involving less close relationships must be very carefully scrutinised.  I cannot say that they should never be admitted.  The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident.”

	This quotation may be taken as an express recognition that some limits to recoverability must be imposed, having regard to the category of relationship, as otherwise those entitled to recover could become extremely numerous.
	That policy considerations can be brought to bear on where the line should be drawn is apparent from the two judgments delivered by members of the Supreme Court in Fletcher v. Commissioners of Public Works [2003] 2 I.L.R.M. 94.

	In his judgment, Keane, C.J. stated at p. 112:-

“I would have no hesitation in rejecting the proposition that, in considering whether particular categories of negligence which have not hitherto been recognised by judicial decision should be so recognised, policy decisions should play no part.  That doctrine, in its most extreme form, is to be found in the speech of Lord Scarman in McLoughlin v. O’Brian.  However, as the speech of Lord Edmund-Davies in the same case demonstrated, judges have for long invoked policy considerations in determining where the boundaries of legal liability for negligence should be fixed.  Thus, in principle, it would have been possible to extend liability for negligence far beyond the traditional ambit of wrongs causing personal injuries or physical damage to property: the ground for not extending liability to all forms of economic loss (save for cause by negligent misstatement) is the undesirability of courts extending the range of possible liability in so uncontrolled and indeterminate a manner without any legislative intervention.”

		In his judgment in the same case, Geoghegan J. also acknowledged the importance of policy considerations where attempts are made to define the limits either of what might be regarded as reasonably foreseeable or other questions in relation to the existence of a duty of care in stating (at p. 144):-

“It is against that background of the case law which I have reviewed that this Court must decide as a matter of policy and of reasonableness whether claims for damages for psychiatric injury only and resulting from fear of asbestos related diseases of a degree which is objectively irrational are recoverable.  Traditionally, courts do not always use the actual word ‘policy’.  They may attempt to draw artificial limits to what can be regarded as being reasonably foreseeable or they may in considering proximity or other questions in relation to the existence of a duty of care, invoke the concept of reasonableness so that a duty of care will not in fact be imposed if the court considers it unreasonable to do so.  The third control mechanism which the court may impose is in relation to particular heads of damage or finally, they may expressly deny a claim on grounds of public policy.”

	Geoghegan J. was thus able to formulate a set of principles applicable to cases of this nature, (albeit that Fletcher was more concerned with irrational fear of asbestos related disease), to describe as his first principle the following (at p. 145):-

“Reasonable foreseeability is not the only determining factor in establishing a duty of care.  ‘Proximity’, which is given an elastic definition in the decided cases, the reasonableness of the imposition of a duty of care and questions of public policy can be additional determining factors.”

	‘Proximity’ was dealt with in the judgment of Denham J. in Kelly v. Hennessy [1995] 3 I.R. (at 270).  The learned judge said that there were several elements in the requirement of proximity being (a) proximity of relationship between persons; 
 (b) proximity in a spatial context (i.e. the person must perceive the aftermath of the accident); and (c) proximity in a temporal sense (i.e. that ‘shock’ must be the cause of the illness).  
	It is on the issue of proximity of relationships that this case turns.  The defendants do not argue that the plaintiff in the instant case has failed to meet any requirement of either spatial or temporal proximity to the accident.  
	In Kelly v. Hennessy, the plaintiff’s husband and one of her daughters suffered permanent brain damage in a serious car crash caused by the negligence of the defendant.  There was no dispute in that case but that the plaintiff came within the scope of those to whom the defendant owed a duty of care.  In his judgment, Hamilton, C.J. did not purport to fix any boundary by way of Rubicon whereby husbands and wives, parents and children would qualify and all other relationships, familial or otherwise, would not.  Indeed the defendants did not even argue the relationship issue in that case.  The judgment of Denham J., however, addressed the question of the scope of who might qualify when she stated (at p. 274):-

“I am satisfied that a person with a close proximate relationship to an injured person, such as the plaintiff, who, while not a participant in the accident, hears of it very soon after and who visits the injured person as soon as practicable, and who is exposed to serious injuries of the primary victims in such a way as to cause a psychiatric illness, then she becomes a secondary victim to the accident.”  (emphasis added)

	It certainly cannot be said in the instant case that the plaintiff has failed to discharge the onus of proving that a ‘close proximate relationship’ existed between him and his deceased brother and also his seriously injured sister, both on the basis of close family relationship and indeed also on the basis of close ties of affection.  I am, however, taking Denham J. to mean ‘family relationship’ only by her observations in Kelly v. Hennessy.  In the absence of any debate on the issue, which in any event did not require to be decided in that case, it would be quite wrong in my opinion to interpret what was said by Denham J. in any way which would extend the boundaries beyond those of very close family relationships, amongst which that of brothers and sisters may clearly be one. 
	This Court would certainly support the proposition that policy considerations would dictate that the ambit of recoverability and the category of relationships entitled to successfully claim damages for nervous shock should be tightly restricted.  However, to recognise such a principle is not in any way to resolve the problems that arise in deciding who may recover in these cases.  These problems were addressed extensively in the judgment of Geoghegan J. in Fletcher v. Commissioner of Public Works.  Having referred to how the House of Lords in Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 held that the class of persons to whom a duty of care was owed on the basis of proximity was not limited by reference to particular relationships such as husband and wife or parent and child but was based also on ties of love and affection, the closeness of which would need to be proved in each case, Geoghegan J. stated as follows (at p. 131):-

“The idea that as between siblings the plaintiff would have to prove special love and affection for the brother or sister in question with that perhaps being hotly opposed in cross-examination is certainly not a desirable vista, if it could be avoided in other ways.”

	One of the ways is, of course, to exclude certain categories of relationships, invoking policy grounds to do so.  But which relationships are included and which are excluded when such policy grounds are invoked?  Where does the policy interest lie? For example, if siblings qualify, do step-brothers and step-sisters also qualify?  Do engaged or same-sex couples in a long and loving relationship qualify?  Does a close and lifelong friendship offer any prospect that a court might qualify the severely traumatised survivor where a lifelong friend and companion dies through the negligence of another?  At the opposite extreme, should policy considerations, which must include some recognition of the burden on insurers called upon to meet the cost of multiple claims, exclude secondary victims altogether?  Ultimately, of course, this burden falls on the policy holders and, by extension, the public.  Should not the possibility of exaggerated, or even fraudulent claims, in this area not weigh heavily with judges whose sympathies may all too easily be won over by horrifying accounts of such accidents and their aftermath?                      
	The difficulty of resolving these issues is self evident even where the other elements of the proximity test are met and the considerations last mentioned above would, it must be said, most commend themselves to this Court.  However, it seems to me that I must accept what has been decided in other cases and that in the instant case I therefore should apply a ‘close proximate relationship’ test which, by implication at least, seems to qualify the close family relationship between the plaintiff and his brother and sister.  At least such an interpretation has the benefit of being consistent with the legislative policy evident in Part IV of the Civil Liability Act, 1961 when it identified those entitled to recover damages for mental distress in fatal accident cases as being “any member of the family of the deceased”.  While the causes of action are different, the principle determining who may recover seems to me to be the same, even if the scope for far larger awards arises in cases of nervous shock.
	For my own part, it seems to me that a policy based limit on the category of those entitled to recover is, in the absence of legislation, a less dangerous route to follow than one based on foreseeability.  Under a foreseeability test, absent qualifications for policy reasons, there could be very significant numbers of persons who could advance claims for compensation for nervous shock having fulfilled the temporal and spatial requirements of the proximity text, particularly when and where a multiple tragedy takes place.  It may make sense on policy grounds to exclude from the ambit of compensation a police officer who arrives qua ‘rescuer’ on the scene of an horrific accident.  On any test of foreseeability, however, it is entirely understandable that a considerable range of persons may well suffer nervous shock as a result of exposure to a particular experience.  To my way of thinking it is an entirely artificial exercise to assume degrees of ‘resoluteness’ or ‘fortitude’ on the part of secondary victims as a reason for excluding them from a qualifying category of claimant.  
	A clear policy which defines and limits the categories of persons to whom a duty is owed, with whatever drawbacks that approach may involve, seems to me to offer greater certainty in this difficult area.  While the Civil Liability Act, 1961 was eventually amended in 1996 to provide for larger compensation in fatal accident cases for mental distress, and while in the ‘nervous shock’ context it may not accord with my own views, I am not aware of any serious criticism over the years of the limited range of persons identified in the Civil Liability Act as potential or appropriate claimants. 

Damages
	In the days following the accident, the plaintiff experienced nothing but numbness.  He had a week of funerals to attend.
	Within a relatively short time, however, he became increasingly distressed and disturbed.  He would wake up in the middle of the night terrified.  He had flashbacks and disturbing memories of what he had seen and experienced.  He initially received counselling support from Mr. Alex Carroll, Clinical Psychologist with the Midland Health Board, and later from Mr. John Bannon, Behavioural Therapist with the same Board.  He saw Mr. Carroll twice, some four months after the accident, but derived little benefit.  He saw Mr. Bannon some seven or eight times.
	He had major problems with increased alcohol consumption and indulged in drinking binges.  This was to help him sleep.  He had great difficulty with sleeping and frequently woke up in cold sweats.  He had many intrusive images of the faces of the deceased people in the mortuary.  He also experienced marked mood swings and marked irritability.
	He came under the care of Mr. Stephen Kealy in December, 2000.  Mr. Kealy noted that on the Beck Depression Inventory, Mr. Cuddy’s responses suggested a level of severe depression.  On the Trauma Symptom Inventory, the plaintiff had significantly elevated scales in all areas.  
	Insofar as his work was concerned, the plaintiff remained out of work for some three months in the aftermath of the tragedy.  He then returned to work, mainly dealing with work in the laboratory, during daytime hours.  He stayed working in the hospital for some four or five months in this capacity.  However, on certain days he was placed back in the Casualty Department and on one occasion lost self control completely when required to deal with a road traffic situation which had similarities with the events the subject matter of these proceedings.  On finishing work with the hospital, his uncle took him into the building trade.  He is now working for a building firm in Monasterevin, as a general labourer.  He has not been on anti-depressant or other medication. 
	He married in July, 2003 and lives with his wife in a new house within a short distance of his family home.  His wife, Bronwyn, told the Court that the plaintiff had gone downhill to a significant degree since the tragedy.  He had become very intolerant and was prone to angry outbursts over small matters.  His mood was very volatile.  He used binge drinking for release and to help him sleep.  He was also getting nightmares and night sweats.  His family relationships had also declined because of the events in question.  Mr. Cuddy described how his wife was a very stabilising influence now in his life.  He is able to hold down a job and continue to function reasonably well at present.  He has resumed playing hurling, though without the same enthusiasm which he formerly had.  He continues to have difficulty managing questions or statements from others in respect of the accident and the death of so many.  He also has guilt feelings as to whether there was anything he could have done to make sure on the night that Jackie, his sister, could have received better care.
	Mr. Kealy in evidence stated that he was satisfied that the plaintiff had all the markers of post-traumatic stress disorder and was not challenged on this diagnosis by counsel on behalf of the defendants.  
	Evidence was also given by Dr. Lorcan Martin, Consultant Psychiatrist, to whom the plaintiff had been referred by his solicitor.  He told the Court that the plaintiff’s symptoms were consistent with the diagnosis of post-traumatic stress disorder.  Dr. Martin stated that the plaintiff’s mood swings persist up to the present and his irritable feelings seem to have worsened over time.  At the time of his assessment of the plaintiff on the 12th June, 2003, Dr. Martin found the plaintiff to be particularly tearful when discussing the deaths of his family members but did not appear to be depressed.  There was no evidence of suicidal ideation or of psychotic features.  He also believed the plaintiff had a stable pre-morbid personality and an absence of psychiatric history prior to the accident.  Dr. Martin advised the plaintiff to reduce his alcohol intake and also to reconsider additional psychiatric or psychological intervention, given the protracted nature of his symptoms.
	Having had the benefit of seeing and hearing the plaintiff while he described the events which gave rise to his nervous shock, I have no difficulty in accepting his account of his symptoms as genuine or in accepting the medical evidence tendered on his behalf.  Indeed, no evidence in contradiction was submitted by or on behalf of the defendants.  The entire focus of the defendants in this regard was to suggest that the plaintiff was making good progress in very difficult circumstances.  
	Because I am satisfied that this is a completely genuine case of post-traumatic stress disorder, and one brought on, as has been conceded, by the shock of the experiences the plaintiff went through on the night of the accident in such a central fashion, I propose to assess general damages for pain and suffering to date in the sum of €60,000.  
	Insofar as future pain and suffering is concerned, I must bear in mind that the plaintiff does not appear to have pursued the possibility of seeking additional medical assistance, be it in the form of psychological or psychiatric care, medication, counselling or other behavioural therapy which might ameliorate his symptoms further.  There is a sense in which he is drifting on in the existing status quo where different forms of remedial action might altogether resolve any continuing psychiatric illness, which at this stage at least seems to me to be of a fairly moderate nature only.  I will therefore measure a sum of €20,000 in respect of pain and suffering in the future, making a total of €80,000 and will give judgment for the plaintiff accordingly in that amount.