The Supreme Court has dismissed an appeal by Bridget Devlin over the retention of organs from her stillborn daughter, Laura, and the psychiatric illness she said she suffered after learning of it. The court upheld the High Court order dismissing the action, ruling that the law on nervous shock did not permit her to recover damages in the circumstances of the case.
The judgment, delivered by Denham J. on 14 November 2007, arose from the dismissal of the Devlins’ claim against the National Maternity Hospital. On the hospital’s application for a direction, the High Court had to consider the plaintiffs’ case at its highest. It assumed, for that purpose, that the parents had not consented to the post-mortem, did not know organs would be removed and retained, and that Bridget Devlin suffered shock and post-traumatic stress when she learned of the retention.
The Supreme Court found no error in the High Court’s approach to that application. It also affirmed the finding that complaints about carrying out the post-mortem without consent were statute barred: the parents knew shortly afterwards that the post-mortem had taken place. But it upheld the separate conclusion that the claim concerning retention of the organs was not statute barred. The High Court had accepted that the parents did not learn of the retention until they received a letter from the hospital in 2000, and the Supreme Court found no error in that conclusion.
The central issue was whether Bridget Devlin could recover damages for nervous shock without actual or apprehended physical injury to herself or another person. The High Court accepted that she had a psychiatric illness induced by shock and that the other relevant conditions were met, but found the physical-injury requirement in the Supreme Court’s earlier decision in Kelly v Hennessy was not satisfied.
Denham J. agreed that the existing law required that condition. She declined to extend the law to cover the circumstances of the case, saying such a change could create uncertainty and wider consequences for liability. The judgment therefore dismissed the appeal and affirmed the High Court’s order. It was a decision on the law and, the court said, should not be read as endorsing the hospital’s former practice.
The judgment also recorded that the appeal was considered as Bridget Devlin’s appeal, not Terence Devlin’s. The High Court had found he had not proved personal injury or loss, and the Supreme Court said it would not interfere with that factual finding.