The law on nervous shock has been in a state of flux last couple of years. Our David O’Malley discusses the recent “Kinsella v Carter” case which has clarified and reaffirmed the legal position regarding the current position in this jurisdiction.
The case provides significant clarification on secondary victim claims in Irish law and distinguishes sudden catastrophic medical events from cases involving gradual deterioration.
An important reminder of the evolving approach of the Irish courts toward psychiatric injury and foreseeability in medical negligence litigation.
NERVOUS SHOCK Update
Kinsella v Carter 2026 IEHC 319
A recent Irish High Court Judgment importantly reaffirmed “Kelly v Hennessy” criteria along with clarifying some discreet qualifying issues namely:
Accident:
An accident is not confined to road traffic or industrial mishaps. O’ Connor J “An accident denotes a sudden unintended and externally caused event which is capable of producing a direct and shocking sensory impact.”
Setting:
The location of a hospital does not avail the hospital from a shocking event. In that regard the plaintiff does not need to be physically present in the setting at time of incident. O’ Connor J “It is not the setting in which the event occurs but it’s character.” In that context important note in this case as indeed in the “Kelly v Hennessy” the Plaintiffs were not at the scene of the accident.
Proximity:
There needs to be temporal proximity of as O’ Connor J ruled: “a sudden or horrifying appreciation of an event or its immediate aftermath.”
Appreciation is an important reference here as it’s a person’s perception of a sudden shocking event to them whether at time or the immediate aftermath.
Subsequent or continuum events:
The case importantly clarified that further or continuous events should not disqualify the remedy from the original shocking event.
Summary:
The “Kinsella v Carter” case reaffirmed the “Kelly v Hennessy” law on nervous shock and noted that same framework is the law going forward pursuant to facts as they present themselves within that criteria.
The case also rejected arguments regarding jurisdiction and duty of care in a hospital setting and highlighted that if someone is injured from appreciating a shocking event either at the time of incident or in immediate aftermath they may well have a remedy depending on fulfilling all the other ingredients of the tort.
The case also distinguished Irish law from different jurisprudence in the UK Jurisdiction.
The case will hopefully provide guidance re nervous shock and counteract recent resistance of recognising a legitimate tort by Defendants during the course of litigation.
View or download the judgement document: