The Court of Appeal has overturned an €80,000 High Court award to network technician Warren Harford, ruling that his psychiatric illness did not result from the kind of sudden event required for damages for nervous shock.
Harford was repairing a street light on Highfield Road, Rathgar, Dublin 6, in December 2014. He used a cable-testing device he had not used before and had not been trained to operate. After starting to strip insulation from a cable he believed was a low-voltage line, he noticed it had three cores rather than the four he expected. He realised it was a medium-voltage cable carrying 10,000 volts and stopped work before applying test probes.
Harford later described intrusive thoughts about what might have happened, palpitations and difficulty concentrating. The parties did not dispute that he developed a recognised psychiatric illness, although their psychiatrists differed on whether it was post-traumatic stress disorder or depression.
Before the High Court trial, the Electricity Supply Board admitted negligence for the purposes of the proceedings, while reserving disputes about foreseeability, causation, remoteness and whether the psychiatric injury was legally compensable. The High Court found the Board liable and awarded €80,000 in general damages. On appeal, Harford’s counsel accepted that the trial judge’s apparent finding of a sudden severe shock while Harford was in the hole was unsupported by the evidence.
Giving the Court of Appeal’s judgment, Mr Justice Noonan said the cable remained insulated while Harford handled it. The risk of electrocution, he concluded, would have arisen only if Harford had continued with his original plan after recognising the danger. The injury instead followed his later realisation that he had avoided a dangerous course of action, with the implications unfolding over several hours.
The court held that the claim did not satisfy two requirements identified in the Supreme Court’s decision in Kelly v Hennessy: the psychiatric illness had to be shock-induced by a sudden, horrifying event, and the shock had to arise from actual or apprehended physical injury. In this context, the court said, apprehension must look forward to an injury believed to be about to happen. Harford had recognised the danger before taking the step that could have exposed him to it.
The court said allowing recovery in these circumstances would extend the existing law and create practical uncertainty about when liability would arise. It allowed the ESB’s appeal, set aside the High Court order and dismissed Harford’s claim. Its provisional view was that the ESB should receive the costs of the appeal and High Court hearing. Harford had 14 days to seek a brief supplemental hearing on costs; absent such an application, the proposed costs order would be made.