Killian Flood BL

About this case:

• Citation:
  [2021] IECA 112
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Seamus Noonan

The court ruled that the plaintiff failed to properly satisfy the test set out in Kelly v. Hennessy [1995] 3 IR 253 because the injuries were not shock induced and that there was no genuinely apprehended injury to the plaintiff.

The judgment was written by Mr Justice Seamus Noonan, who has recently delivered a number of significant rulings in the area of personal injuries law. In this case, the court provided a detailed analysis of the development of damages for psychiatric injury in Ireland and other jurisdictions.

Background

The plaintiff was a network technician for the Electricity Supply Board. In 2014, the plaintiff was tasked with repairing a public street light in Rathgar, Dublin. The relevant electric cables had been exposed from an excavation of the street the previous day.

The cable for the streetlight was described as low voltage, with 400 volts. Such a cable usually had four cores. The plaintiff was required to identify the cable voltage and whether the cable was live. Normally, he used a device called a grumbler, but this device was not available on the day and he had to use an Ariadna 1C1G. The plaintiff was not familiar with this device and never had training in its use.

When he used the Ariadna device on the cable, it appeared to provide the correct signal, although he was getting similar signals from other cables. On this basis, the plaintiff began to remove external protection from the cable, down to the so-called “belting papers.” The papers provide insulation for the cable and the plaintiff’s evidence was that he handled the cable several times without receiving an electric shock.

When he got down to the belting papers, the next step was to insert test lamps directly into the cable core. The test lamps were in the plaintiff’s van so he had to get out of the hole in the street to fetch them.

At this point, the plaintiff noticed something was different about the cable. On further analysis, the plaintiff realised that the cable was medium voltage, containing 10,000 volts. If he had applied the test lamps to the cable, he would have suffered severe injury and maybe death.

Although he attended work again the week after the experience, the plaintiff increasingly dwelled on the situation and subsequently developed post-traumatic stress disorder and/or depression.

The plaintiff issued personal injuries proceedings against the ESB, who admitted negligence but contested the case on reasonable foreseeability, causation, remoteness and duty of care grounds. It was also contended that the type of injury suffered by the plaintiff was not a valid cause of action. The plaintiff received €80,000 in the High Court, which was appealed by the ESB.

Court of Appeal

The appeal centred on the contention by the ESB that the plaintiff’s injuries were not occasioned by nervous shock as defined in the case law. Further, it was said that there was no singular horrifying event which caused the plaintiff to suffer the psychiatric damage.

The court gave an extensive analysis of the development of psychiatric injuries cases in Ireland and other common law jurisdictions. The court outlined the five-stage test in Kelly v. Hennessy, which required 1) that the plaintiff establish a recognised psychiatric injury, 2) that the injury was shock induced, 3) that the defendant’s actions caused the shock, 4) that the nervous shock must be by reason of actual or apprehended physical injury to the plaintiff or another person and 5) that the defendant owed a duty of care to the plaintiff not to cause reasonably foreseeable psychiatric damage.

The court also considered the case of Fletcher v. Commissioners of Public Works [2003] 1 IR 465, in which the Supreme Court determined that “nervous shock” did not extend to irrational or unfounded fears of plaintiffs. In particular, the Supreme Court held that Fletcher was not a nervous shock case at all, because the plaintiff did not suffer any identifiable “qualifying event.” This was further emphasised by the Supreme Court in Devlin v. National Maternity Hospital [2008] 2 IR 222.

In both cases, the court held that there were good policy reasons why a plaintiff could not recover if there was no singular horrific event which caused the psychiatric injury, including that there had to be a general limit on the ability to claim for psychiatric damage.

Applying the case law to the present case, Mr Justice Noonan determined that the plaintiff failed to fulfil the criteria set out in Kelly v. Hennessy. The court held that the plaintiff did not ever establish that he was actually in danger at any point. The clear evidence in the case was that the relevant cable remained insulated at all times and so the plaintiff was never at risk of electrocution when handling the cable.

As such, the court determined that the plaintiff did not satisfy the second and fourth steps of the Kelly v. Hennessy test. The injury was not “shock induced” within the meaning of the case law. The court said that there was “no qualifying event and, on one view, no event at all. There was instead a post-hoc realisation that injury had been avoided by a decision not to proceed with what, with hindsight, was a dangerous course.”

Further, there was no apprehended injury to the plaintiff in the case because he did not at any point expect or believe that he would be injured. As such, the case did not fall within the scope of cases such as Dooley v. Cammell Laird and Mersey Insulation Co. Ltd [1951] 1 Lloyd’s Rep 271 or Curran v. Cadbury Ireland Limited [2000] 2 ILRM 343.

The court determined that imposing liability in the case could give rise to uncertainty in the law and practical difficulties. The court said “One can think of an infinite number of scenarios where the continuation on a particular course could lead to danger but the danger is avoided, fortuitously or otherwise, because it is appreciated in time.”

Finally, the court held that the plaintiff was contending for an extension of existing law in this jurisdiction, which the court could not provide due to binding Supreme Court precedents.

Conclusion

The court allowed the appeal and set aside the €80,000 damages award by the High Court. As the defendant had been entirely successful on appeal, the court took the provisional view that costs should be awarded to the defendant.