Secondary victims in medical negligence are close relatives who suffer a recognised psychiatric injury after witnessing their loved one’s injury or death, or encountering the immediate aftermath. Courts look for a close tie of love and affection, proximity in time and place, direct perception of the event, and proof that the illness was caused by shock rather than grief. These requirements are framed by Kelly v Hennessy and general duty of care principles.
Kelly v Hennessy
Kelly v Hennessy is a 1995 decision of the Irish Supreme Court. It set the rules for when a person can recover compensation for a psychiatric injury after witnessing harm to someone else. Lawyers still use this case as a checklist for claims by relatives in medical settings.
What you need to show
- A recognised condition – A doctor has diagnosed a psychiatric illness, for example, PTSD, depression, or an anxiety disorder.
- Caused by shock – The illness came from a sudden, shocking experience rather than from grief or worry that had built up over time.
- Fault made it happen – The shock was the result of negligent care by a hospital or clinician.
- Linked to serious harm – The shock came from witnessing, or coming upon the immediate aftermath of, serious injury or death to you or a loved one.
- Responsibility to take care – It was reasonably foreseeable that someone in your position could suffer this kind of psychiatric injury, so the healthcare provider owed you a legal duty of care.
How this plays out in medical settings
- Strong cases usually involve a single event that is sudden and distressing, such as witnessing a collapse on a ward or a resuscitation attempt.
- Claims are harder where the problem unfolded slowly, such as a missed diagnosis over months, or where you only heard about events later rather than seeing them yourself.
- Ordinary grief, sadness or understandable upset do not meet the legal test on their own. There must be a diagnosed illness and a clear link to a shocking event.
Evidence that helps
- A medical report confirming the diagnosis and when symptoms began.
- A clear timeline of what you saw and when you saw it, including who was present.
- Hospital records, incident notes and any messages or notes made at the time.
- Short statements from family members or staff who can confirm what happened.
In short
If you believe you developed a psychiatric illness after witnessing a sudden medical event involving a close relative, the question is whether your experience fits these five points. A brief chat with a medical negligence solicitor can help you understand where you stand and what evidence you might need.
Case law on psychiatric injury in medical negligence
These short summaries show when such claims can succeed, and where the courts draw the line.
Courtney v Our Lady’s Hospital Ltd [2011] IEHC 226
What happened: A mother witnessed the death of her young daughter in hospital. The hospital accepted fault, and the court’s job was to assess compensation.
Decision: The court awarded general damages for the mother’s psychiatric injury, and also allowed reasonable legal costs of attending the inquest.
Why it matters: It is a clear example of a successful claim by a close relative who directly witnessed a sudden, traumatic event in a hospital setting.
Barry v Health Service Executive [2015] IEHC 791
What happened: Following negligent care, a woman’s partner died. She developed a recognised psychiatric illness.
Decision: The court made an award that included damages for her psychiatric injury, alongside other losses.
Why it matters: Shows that where negligence is admitted and the evidence supports a diagnosed condition linked to the events, compensation can include a psychiatric-injury element.
Morrissey v Health Service Executive [2019] IEHC 268
What happened: In the CervicalCheck litigation, the husband of a patient sought damages for psychiatric injury linked to alleged screening failures.
Decision: The court held that screening providers did not owe a duty of care to relatives in this context, so his psychiatric-injury claim failed.
Why it matters: It sets an important limit. In screening programme cases, relatives generally cannot claim for psychiatric injury because no duty is owed to them.
Mitchell v Health Service Executive [2023] IEHC 394
What happened: Another screening case where relatives brought a psychiatric-injury claim.
Decision: The High Court reaffirmed Morrissey and found no duty of care owed by screening services to relatives, so the claim did not proceed.
Why it matters: Confirms that the Morrissey principle continues to apply in screening programme claims.
Germaine v Day [2024] IEHC 420
What happened: A widow alleged psychiatric injury after her husband’s lung cancer was missed, and his condition worsened over time.
Decision: The High Court dismissed the claim. The court found there was no shock event and declined to hold that a duty of care was owed to relatives in these circumstances.
Why it matters: Illustrates the difficulty of claims based on gradual deterioration or delayed diagnosis, and clarifies how Irish law approaches duty and “shock” in medical cases.
Bringing a psychiatric injury claim as a relative
It is possible to bring secondary victim claims made by relatives, but the law sets clear limits. You need a recognised psychiatric condition that stems from a sudden, shocking event you witnessed or encountered in the immediate aftermath, and there must be a legal duty of care.
If you think this may apply to you, arrange a confidential, no-obligation consultation here at McCarthy + Co Solicitors LLP. We will listen to your circumstances, explain the process and time limits, and outline the evidence that can help. Simply complete our quick and confidential online form, and a member of the team will be in touch with you.
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