Tort Law: Negligence, Causation, Loss of a Chance, and Psychiatric Injury

Vocabulary practice flashcards covering causation, remoteness, loss of a chance, actionable damage, and psychiatric injuries/nervous shock under Irish and common law tort principles.

Loss of a Chance

A legal concept concerned with a person being deprived of an opportunity or chance of a better outcome that might have happened, but for the defendant's negligence.

Standard of Proof

The requirement in tort and all civil law cases for the plaintiff to prove that, on the balance of probabilities, the defendant caused their injury.

Chaplin v Hicks [1911]

An English case where an actress who missed an interview for a newspaper beauty contest due to a late invitation was awarded $£100$ for the loss of a chance of winning employment.

Tabet v Gett (2010)

An Australian High Court case holding that the loss of a chance of a better medical outcome was not actionable damage where physical brain damage had eventuated following a delayed CT scan.

Lawson v Lafferière [1991]

A Supreme Court of Canada decision denying recovery for loss of a chance in medical negligence where death or sickness eventuated, but awarding damages for mental distress caused by four years of ignorance of a cancer diagnosis.

St-Jean v Mercier

A Supreme Court of Canada case that restated the principle from Lawson v Lafferière denying recovery for loss of a chance in medical negligence.

Hotson v East Berkshire Area Health Authority [1987]

A House of Lords decision establishing that loss of a chance is not a suitable basis for a claim regarding past events where physical deformity occurred and evidence showed a $75\%$ likelihood of that deformity in any event.

Gregg v Scott [2005]

A House of Lords case where a doctor's delayed cancer diagnosis reduced a patient's survival prospects from $42\%$ to $25\%$, but the claim failed because the initial prospect was below $50\%$.

Lady Hale's 'Heads You Lose Everything, Tails I Win Something' Objection

A policy objection raised in Gregg v Scott against allowing loss of a chance claims, arguing it creates an unfair system where plaintiffs can claim for the physical outcome or for the lost chance of avoiding that outcome.

Lord Nicholls' Dissent in Gregg v Scott

A dissenting judicial opinion proposing that a medical negligence claimant should be permitted to sue a doctor for the lost chance of a favourable outcome.

Philp v Ryan [2004]

An Irish Supreme Court decision awarding damages because a patient was deprived of appropriate medical advice and the consequent opportunity to avail of treatment after an eight-month delay in diagnosing prostate cancer.

Aggravated Damages

Damages awarded when the defendant's conduct aggravates the effects of their negligence, such as when the doctor in Philp v Ryan altered his clinical notes to appear less negligent.

Actionable Damage

The recognized harm that forms the essential 'gist' of a negligence action, representing the legal interests that courts have decided to protect in previous cases.

Psychiatric Harm (Lord Wensleysdale)

Defined in Lynch v Knight (1861) as 'mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone.'

Permitted Categories of Psychiatric Injury

The three situations where psychiatric harm is generally actionable: (1) subsequent to physical injury, (2) in 'nervous shock' cases, and (3) in occupational stress-induced cases.

Recognised Psychiatric Illness Requirement

The legal threshold establishing that emotional distress, upset, or grief alone does not constitute actionable damage without proof of a diagnosed psychiatric illness.

O'Connor v Lenihan [2005]

An Irish High Court case where a claim for retained infant organs was dismissed because the parents' palpable anger, upset, and grief did not constitute a recognised psychiatric illness.

Larkin v Dublin City Council [2007]

An Irish High Court case where a firefighter mistakenly told he passed a promotional exam was denied damages because his upset, humiliation, and disappointment did not amount to a recognised psychiatric condition.

Hegarty v Mercy University Hospital Cork [2011]

An Irish High Court case ruling that a patient's high stress and anxiety following a negligent MRSA diagnosis was legally unsustainable without a recognised psychiatric illness.

Broomfield v The Midland Health Board

A case where a mother was awarded $£35,000$ for serious agitation and stress after being given the wrong newborn baby for nine days, despite the absence of physical injury, nervous shock, or a recognised psychiatric illness.

Fear of Disease Cases

A controversial category of tort claims where a plaintiff develops a psychiatric illness solely from the fear of contracting a serious disease in the future after hazardous exposure, without suffering physical injury.

Swaine v Commissioner for Public Works [2003]

An Irish Supreme Court case where an employee developed reactive anxiety neurosis after long-term asbestos exposure in Leinster House; the employer conceded liability, limiting the appeal to quantum.

Reactive Anxiety Neurosis

A recognised psychiatric illness suffered by employees in asbestos exposure cases (such as Swaine and Fletcher) due to chronic fear of developing a fatal disease.

Fletcher v Commissioner of Public Works [2003]

An Irish Supreme Court test case denying compensation on policy grounds to an asbestos-exposed worker suffering from reactive anxiety neurosis caused by fear of contracting mesothelioma, due to the absence of physical injury.

Keane CJ's Obiter Dictum in Fletcher

A judicial comment questioning whether the law's inflexible boundary between non-compensatable grief or mental anguish and compensatable recognised psychiatric conditions remains logical in light of modern psychiatric medicine.

General Exclusionary Rule (Lord Steyn)

The doctrine from White v Chief Constable of South Yorkshire Police [1998] setting out policy reasons against recovery for pure psychiatric injury, including diagnostic uncertainty, disincentives to recover, floodgates of litigation, and disproportionate liability.

The Floodgates Concern

A major judicial policy objection warning that extending liability for pure psychiatric illness could encourage an unmanageable volume of claims against defendants.

Good Samaritan Rescuers in Nervous Shock

Individuals who assist in the aftermath of an accident to rescue strangers from danger, to whom courts have extended recovery for psychiatric injury sustained during the rescue.

Primary Victims

Claimants who were at risk of foreseeable physical injury and in the zone of physical danger during a negligent event, enabling them to recover for resulting psychiatric injury even without physical harm.

Secondary Victims

Claimants who were not themselves at risk of physical injury, but suffered psychiatric injury as a consequence of witnessing harm or danger to another person.

Page v Smith [1996]

An English House of Lords case establishing that if physical injury is reasonably foreseeable from a collision, a primary victim within the zone of danger can recover for psychiatric injury (such as a recurrence of myalgic encephalomyelitis) without separate proof of foreseeable psychiatric harm.

Zone of Physical Danger

The physical area of peril created by a defendant's negligence; being within this zone classifies a claimant as a primary victim under the Page v Smith framework.

Ordinary Fortitude Test

A control mechanism requiring that a secondary victim can only recover if psychiatric injury was reasonably foreseeable in a person of ordinary fortitude exposed to the same circumstances.

Eggshell Skull Rule in Nervous Shock

The rule providing that once psychiatric injury is foreseeable to a person of ordinary fortitude, the defendant is liable for the full extent of the secondary victim's illness, regardless of unusual pre-existing vulnerabilities.

Mullally v Bus Eireann [1992]

An Irish High Court case where a mother recovered damages for post-traumatic stress disorder after experiencing the horrifying hospital aftermath and severe injuries of her family following a bus accident.

Kelly v Hennessy [1995]

The landmark Irish Supreme Court case that formulated the five essential criteria a plaintiff must establish to recover damages for nervous shock.

Kelly v Hennessy Criterion 1: Recognisable Psychiatric Illness

The mandatory requirement that a plaintiff claiming for nervous shock must prove they actually suffered a recognised psychiatric illness, such as PTSD or depression, rather than ordinary emotional shock.

Kelly v Hennessy Criterion 2: Shock-Induced Illness

The requirement that the plaintiff's recognisable psychiatric condition was directly induced by a sudden, disturbing nervous shock.

Kelly v Hennessy Criterion 4: Actual or Apprehended Injury

The requirement that the plaintiff's nervous shock was sustained by reason of actual or apprehended physical injury to themselves or to another person.

Immediate Aftermath Doctrine

The legal rule permitting recovery for nervous shock where a close relative does not witness the accident directly but arrives during the immediate aftermath—either at the scene or in hospital.