The High Court has dismissed Carmel Germaine’s claim for damages for nervous shock arising from the missed diagnosis of her late husband’s lung cancer, finding that she could not meet key legal requirements for recovery.
In a judgment delivered on 10 July 2024, Ms Justice Egan accepted that Germaine had an adjustment disorder, a recognised psychiatric illness. But the court found that the deterioration in her husband’s health which she witnessed in December 2018 was not a sudden shocking event in the legal sense, and that the hospital’s admitted negligence did not cause that deterioration.
Germaine’s husband, Thomas Germain, had a chest X-ray at St James’s Hospital on 2 October 2018. The judgment says an opacity in his right lung was not initially identified by the reporting radiologist. The hospital admitted a breach of its duty of care to him. However, the parties accepted that his cancer was already incurable by October and that an earlier diagnosis would not have changed his treatment or prognosis.
The judgment records that Germain’s health declined over October, November and December. On 23 December, his wife became alarmed when he was unable to lift his arms and dress himself. She persuaded him to attend the Hermitage Clinic the following morning, where he was diagnosed with lung cancer. He died from metastatic lung cancer on 14 February 2019.
Germaine argued that the deterioration around Christmas was a sudden, frightening event and that an earlier diagnosis, palliative care and support would have changed how she experienced it. The defendant disputed that the decline was sudden and argued that the claim did not satisfy the legal tests for nervous shock.
Justice Egan found the evidence showed a gradual decline over weeks, rather than a distinct event on 23 December. Medical records noted that Germain had experienced an unsteady gait for about two weeks before his hospital attendance. The judge accepted the plaintiff’s psychiatric expert’s evidence that the events around 23 December precipitated the adjustment disorder, but said that clinical description did not establish a legally qualifying sudden shock. The illness arose from mounting worry and distress over time, the judgment found.
The court also found that the evidence did not establish that earlier diagnosis and support would have prevented Germaine from witnessing the deterioration, or that her lack of preparation caused her psychiatric illness. It therefore concluded that the claim failed on the required tests of shock and causation.
The judge also considered whether the hospital owed Germaine a separate duty of care. She did not decide the broader question of how proximity should be assessed in future nervous shock claims by patients’ relatives, saying it was unnecessary to resolve this case. She found that the particular duty sought—to protect Germaine from the psychological impact of witnessing her husband’s decline without preparation—was not one it was reasonable to impose in these circumstances. The court dismissed the nervous shock claim.