Categories
Personal Injury Claims

Rescuer at Road Traffic Accident Awarded €85,000 For Post-Traumatic Stress

The High Court in a 2020 decision, Sheehan v Bus Eireann/Irish Bus & Anor ([2020] IEHC 160), has awarded damages to a lady who came upon an accident and suffered post traumatic stress as a consequence of her actions in trying to assist.

The test for psychological/psychiatric injury cases, also known as ‘nervous shock’, in Ireland has been set out by the Supreme Court in Kelly v Hennessy ([1995] 3 IR 253)

Shortly stated, they are:

(i) that the plaintiff suffered a recognisable psychiatric illness;

(ii) that the psychiatric illness was shock induced;

(iii) that the shock (and, hence, the consequent psychiatric illness) were caused by the

negligence of the defendant;

(iv) that the shock was sustained by reason of actual or apprehended physical injury to

the plaintiff or another person; and

(v) that the defendant owed the plaintiff a duty of care not to cause the plaintiff a

reasonably foreseeable injury in the form of psychiatric illness.

In this case the question the Court had to address was number (v) above-that is, did the Defendants owe a duty of care to Ms Sheehan and their defence was that they did not.

Background

Ms Sheehan came upon a road traffic accident in Cork in 2017. Ms Sheehan did not see the accident occur but she got out to investigate when some debris hit her car.

When she investigated she got a tremendous shock but managed to phone the emergency services and looked for any other survivors of the accident.

She later developed a depressive adjustment reaction and post traumatic stress disorder which led to this claim for damages.

The defence put forward by both defendants was that no duty of care was owed to Ms Sheehan for two reasons:

  1. She was merely a secondary victim of the accident and, as a matter of public policy, and could not establish a duty of care by the defendants, including the deceased driver
  2. The driver of the car was a primary victim of self inflicted injuries and did not owe any duty to a secondary duty who suffered a psychiatric injury as a result

The defence accepted that Ms Sheehan had suffered a significant psychiatric injury and the prognosis for her recovery remained guarded and could take some further time.

This defence pointed up an interesting legal distinction between these types of cases in the United Kingdom, and a categorisation of victims as primary and secondary, and the approach taken in Ireland.

Did the defendants owe a duty of care to Ms Sheehan?

The High court referred to the Glencar Exploration case as follows:

 The most recent authoritative statement of the test for the existence of a duty of care isthat of Keane CJ in Glencar Exploration plc v Mayo County Council (No. 2) [2002] 1 IR 84

(at 139):

‘There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously difficult and elusive test of “proximity” or “neighbourhood” can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff, as held by Costello J. at first instance in Ward v. McMaster [1985] IR. 29, by Brennan J. in Sutherland Shire Council v. Heyman (1985) 157 CLR 424 and by the House of Lords in Caparo Industries plc. v. Dickman [1990] 2 AC 605. As Brennan J. pointed out, there is a significant risk that any other approach will result in what he called a “massive extension of a prima facie duty of care restrained only by undefinable considerations …”

Regarding the defence arguments, the first one being that she was merely a secondary victim the High Court held:

Having considered these authorities, I conclude as follows. First, the test for liability for negligently inflicted psychiatric injury is that set out by Hamilton CJ in Kelly. The test for the existence of a duty of care, the fifth requirement of the test in Kelly, is that articulated by Keane CJ in Glencar Exploration plc. A rigid primary/secondary victim distinction, entailing an inflexible adherence to the Alcock control mechanisms, has no role to play in the application of either. To paraphrase the words of McCarthy J in Irish Shell Ltd v Elm Motors Ltd [1984] IR 200 (at 227), whilst the judgments in cases decided in the English Courts at all levels will, on a great many occasions, provide convenient and, indeed, convincing statements of principle and attractive arguments in favour of such principles, they do no more than that.

And the High Court went on to say, 

Because Ms Sheehan did not actually see the car collide with the bus in the dark and because, in that context, Ms Sheehan herself described ‘coming upon’ the scene of the collision when she got out of her own car, the defendants urge me to conclude that she was not a ‘primary victim’ of the accident. For the reasons I have already given, I do not think that anything turns on the point. But lest I am mistaken in that regard, I propose to address it. Ms Sheehan’s car was directly struck by debris from the collision and she brought her vehicle to a stop on a dark country road for no other reason than that she perceived something disturbing or alarming had occurred in the immediate vicinity. As a motorist within the radius of flying debris from the collision, I am satisfied that she was in the area of risk of foreseeable physical injury and, as a motorist whose vehicle was struck by flying debris, I am satisfied that she was a participant in the accident, albeit one on the periphery of it. Applying the definition of ‘primary victim’ so construed, I would conclude that Ms Sheehan was a primary, rather than secondary, victim of the accident, were it necessary to consider and apply that distinction for the purpose of the law on liability for negligently inflicted psychiatric injury – although I do not accept that it is

Thus, were it necessary to do so, I would reject the argument that, for Ms Sheehan to succeed in her claim as a rescuer, there is a threshold requirement that she objectively exposed herself to danger or reasonably believed that she was doing so, or – differently put – that it is necessary for her to establish that she came within the range of foreseeable physical injury in giving assistance at the scene of the accident. But it is not necessary for me to decide the point in the circumstances of the present case because, as  I have already indicated, I am satisfied that Ms Sheehan did expose herself to danger in providing assistance at the scene of the crash on the dark roadway and that she came within the range of foreseeable physical injury in doing so. As Douglas Brown J accepted in Cullin v London Fire & Civil Defence Authority (1999) PIQR 314, in most instances the danger to a rescuer will not be the same as the one that caused the accident or disaster that precipitated the rescue.

The second defence argument was

The defendants’ second argument is that Ms Sheehan’s claim must fail because, as a matter of policy, there is no liability in negligence where the primary victim was the negligent defendant and the shock to the plaintiff arose from witnessing the defendant’s self-inflicted injury.

Thus, I reject the argument that the duty of care to Ms Sheehan in this case is negated simply because the primary victim, whose self-inflicted injuries caused the shock that led to Ms Sheehan’s psychiatric injury, is a deceased person represented by one of the defendants.

I find that the deceased driver in this case, represented by FBD, did owe Ms Sheehan a duty of care not to cause her a reasonably foreseeable injury in the form of psychiatric illness. I can identify no consideration of public policy that dictates otherwise. Further, I conclude that it is just and reasonable that the law should impose that duty on FBD for the benefit of Ms Sheehan. There is no dispute that Ms Sheehan’s satisfies each of the other elements of the test to establish the defendants’ liability to her in negligence. Thus, it follows that Ms Sheehan is entitled to recover damages from FBD to compensate her for the psychiatric injury she has sustained.

Because of her experience on 28 January 2017, Ms Sheehan developed a moderately severe post-traumatic stress disorder (‘PTSD’), consequent upon an acute stress reaction.

She was out of work for an initial period of five weeks and, intermittently, for short periods thereafter, before leaving her job as a hairdresser in February 2019 on the basis that she felt unable to continue. Her condition has placed great strain on her family relationships, including her intimate relationship with her husband. She continues to undergo therapy and counselling, and to take a range of medications. When assessed in September 2019, she had still not yet recovered and the prognosis remained guarded.

Her own consultant psychiatrist is hopeful that, in time, she will make a full recovery, subject to a twenty-five percent chance of further anxiety, depression or stress-related conditions in the future.

81. I assess Ms Sheehan’s general damages in the sum of €65,000 to date and €20,000 into the future, making a total of €85,000. Special damages are agreed in the sum of €2,238.

The total award is, therefore, €87,238.

Mr Justice David Keane provides an excellent analysis of the development of the law in Ireland and the UK regarding negligently inflicted psychiatric injury. If you have an interest in law and the law of negligence this decision is well worth a read.
You can read the full decision in Lisa Sheehan and Bus Eireann and Vincent Dower [2020] IEHC 160 here.

Categories
Personal Injury Claims

Letter of claim in a personal injury action-time period shortened to 1 month

If you claim that somebody caused you an injury and you intend commencing personal injury proceedings against that person you, or your solicitor, must write a “letter before action” to that person. This obligation is set out in section 8 Civil Liability and Courts Act 2004 as follows:

8.—(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of 2 months from the date of the cause of action, or as soon as practicable thereafter, on the wrongdoer or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, the court hearing the action may—

(a) draw such inferences from the failure as appear proper, and

(b) where the interests of justice so require—

(i) make no order as to the payment of costs to the plaintiff, or

(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.

(2) In this section “date of the cause of action” means—

(a) the date of accrual of the cause of action, or

(b) the date of knowledge, as respects the cause of action concerned, of the person against whom the wrong was committed or alleged to have been committed,

whichever occurs later.

You will note that the obligation was to write the letter within 2 months of the accident, or the date of knowledge of the person against whom the wrong was committed.

Changes in 2019

In January 2019, however, a new piece of legislation, Central Bank (National Claims Information Database) Act 2018, section 13 reduced this time period to one month. This section states

13. (1) In this section “Act of 2004” means the Civil Liability and Courts Act 2004 .

(2) Section 8(1) of the Act of 2004 is amended by:

(a) the substitution of “one month from the date of the cause of action,” for “2 months from the date of the cause of action, or as soon as practicable thereafter,”, and

(b) the substitution of “the court hearing the action shall” for “the court hearing the action may”.

(3) Section 14 of the Act of 2004 is amended by the insertion of the following subsection after subsection (4):

“(4A) Where there is a failure to comply with subsection (4), the court hearing the personal injuries action concerned shall—

(a) draw such inferences from the failure as appear proper, and

(b) where the interests of justice so require—

(i) make no order as to the payment of costs to the party responsible for the failure, or

(ii) deduct such amount from the costs that would, but for this subsection, be payable to the party responsible for the failure as it considers appropriate.”.

You will note from the above section that the Court “shall” draw such inferences from the failure as appear proper; the previous position was that the Court “may” draw such inferences-that is,

“draw such inferences from the failure as appear proper”.

Conclusion

The failure to send this letter before action within 1 month may lead to the plaintiff being penalised in respect of costs at the subsequent Court hearing.

Categories
Negligence Personal Injury Claims

Trends in Personal Injury Law in Ireland in 2019

There has been a vigorous debate in Ireland over the last 12 months or so about insurance, the cost of insurance, personal injury claims, bogus claims, excessive awards from the Courts, small businesses struggling to afford rising insurance premiums, and so on.

The Courts appear to be showing a greater enthusiasm to scrutinise personal injury cases. For example the awards made by the High Court in 2018 were down by 29%, according to the Courts Service annual report for 2018.

Having said that Circuit Court awards for the same time period-2018-increased from an average of €18,488 to €19,304 and the PIAB report for the first 6 months of 2018 showed a level of award which was 4.4 times that of awards for similar injuries in England and Wales.

In 2019 the Courts appear to have shown a greater awareness of the plaintiff’s responsibility for his own safety. For example, in Reilly v Mangan [2019] IEHC 91, the plaintiff was held responsible for his own injuries when he was injured by a taxi who drove over his ankle when he had been drunk and involved in a fight on a busy street.

The Court of Appeal dismissed the Plaintiff’s claim in White v Doherty & Anor [2019] IECA 295. The plaintiff had suffered a trip and fall injury in a caravan park but the High Court and Court of Appeal both found that users would be expected to take care in such a park for loose or embedded stones. 

In Keegan v Sligo County Council [2019] IECA 245 the Court of Appeal sent the case back to the High Court because the High Court had not had regard for whether the plaintiff’s alcohol consumption was a factor in his accident.

In Greene v Dunnes Stores [2019] IECA 115 and Kevin Keegan (Amended by the Order of the Court to Kevin Duke) v Dunnes Stores the Court of Appeal held that employees have responsibilities for their own welfare and safety. In the Greene case the Court of Appeal upheld Dunnes Stores appeal and held that the employer did not have an absolute duty to ensure the safety of the worker and dismissed the claim.

The Court in McCarthy v Twomey [2019] IEHC 719 accepted that the defendant had been in breach of his statutory duty to the plaintiff in failing to appoint a project supervisor and failing to have a health and safety plan for work on site. However, the court also held that that breach did not cause the accident of the plaintiff.

Takeaway

  1. The Plaintiff needs to prove negligence in a personal injury case, not merely that he has suffered an injury and Courts appear to be taken a firmer line in ensuring the Plaintiff discharges this burden of proof.
  2. An employer does not have an absolute duty to ensure the safety of the worker and the spectre of “strict liability” is not accepted by the Courts.
Categories
Personal Injury Claims

Fraudulent and Exaggerated Personal Injury Claims Dismissed by the High Court

Courts appear to be scrutinising personal injury claims more closely in a climate of widespread scepticism about the personal injury culture in Ireland.

Evidence of this can be seen in the High Court decision in an appeal from the Circuit Court in O’Connell -v- Martin; Ali -v- Martin [2019] IEHC 571.

The High Court held that one of these claims was fraudulent and the other one involved exaggerated injuries and dismissed both claims.

The Judge in this case also criticised a solicitor for referring the claimants to a medical consultant when a solicitor ‘has no medical expertise’ and held that the expensive medical reports came into being for legal reasons and to support the claims, not on medical grounds.

Mr Ali’s case was dismissed because he gave misleading evidence-for example that Ms O’Connell was in the car-and Ms O’Connell’s claim was dismissed because the Court did not believe she was actually in the motor vehicle at the time of the gentle, minimal impact between two cars.

Ms O’Connell’s claim had previously been dismissed in the Circuit Court as fraudulent.

The Court noted that expert medical witnesses hold a privileged position in the Irish legal system because they are allowed to give their opinion rather than make factual observations.

Assessment of damages

The Court also looked at what might have been awarded to the claimants if their cases had not been dismissed. Mr Ali had been awarded €17,500 in the Circuit Court but the High Court held a more appropriate sum would have been €3,000.

The High Court also pointed out where the real power lay in cases with an ‘impecunious plaintiff’.

37. This case also illustrates why unmeritorious claims by impecunious plaintiffs are usually settled. It is not because there has been negligence on the part of the defendant, but rather because settling a claim costs less than winning such ‘nuisance claims’, as the legal costs incurred in winning will not be recoverable from the plaintiff. Logic also dictates that the greater the legal costs being threatened, the greater the economic imperative to settle for a defendant. So, in this case, with legal costs so high (say €40,000), compared to the level of the award (€17,500 was awarded to Mr. Ali in the Circuit Court), a likely settlement (of say €7,000) makes economic sense.

38. In many of these unmeritorious cases, where the legal costs dwarf any likely award of damages, a defendant considering settling, is in reality dealing, not with the merits of the case, but rather with the issue of who is going to pay the very significant legal costs. Thus, the real issue for a defendant is:

• whether, in the case of an impecunious plaintiff with an unmeritorious claim, settling makes economic sense in order to avoid the defendant having to pay his own very large legal costs even after winning, or

• whether in the case of a wealthy plaintiff with an unmeritorious claim, settling makes economic sense in order for the defendant to buy off the very small risk of having a very large legal bill (which may dwarf the value of the claim itself).

Two sets of legal costs

The Judge also noted that an impecunious plaintiff can inflict significant costs damage on a defendant in these types of cases.

Plaintiff with fraudulent claim can inflict two sets of irrecoverable costs

40. This case also illustrates that where an impecunious plaintiff such as Ms. O’Connell takes an action which is dismissed by the Circuit Court, it seems, as a fraudulent claim, and thereby inflicts irrecoverable legal costs on a defendant, there appears to be no restriction (e.g. the requirement to provide security for costs) on such a plaintiff from inflicting a second set of irrecoverable legal costs on the defendant in an appellate court. Thus, in this case, the defendant, Dr. Martin (or her insurance company), will likely have to pay her own legal fees for fighting and defeating a fraudulent claim on two occasions. On the other hand, the plaintiff, Ms.O’Connell had a ‘free go’, (in the sense that Ms. O’Connell is unlikely to pay the defendant’s legal costs) not once, but twice, in taking a fraudulent claim, in the hope of receiving damages or a settlement.

Not good practice for solicitors to refer clients to medical consultants

41. Against this backdrop and in order to ensure that Medical Reports are not generated without any medical need, it is this Court’s view that it is not good practice for solicitors to refer clients to medical specialists. The more usual way in which Medical Reports come to be relied upon in court cases, is that a client, if and only if he/she has a medical need, is referred by a person with medical expertise, usually the client’s own GP, who has knowledge of the client’s medical history, to a Consultant. Only after this threshold of ‘medical need’ is passed, would it be usual for there to be a Medical Report which then can be provided to the client’s solicitor for the purposes of litigation.

Principles in assessing general damages

The Judge looked at the guiding principles in assessing general damages:

the following principles derived from decisions of the Court of Appeal and the Supreme Court, which bind the High Court, the Circuit Court and the District Court

  1. Fair to the plaintiff and defendant
  2. Minor injuries/modest damages, middling injuries/moderate damages etc
  3. Award proportionate to other awards and cap on damages
  4. Award to be reasonable in light of general level of after-tax incomes
  5. Appropriate scepticism applied to litigants’ claims
  6. Common sense applied to the parties’ claims
  7. Caution when relying on medical and other expert reports

Conclusion

Ms O’Connell’s claim was dismissed for being fraudulent as her evidence was not accepted as truthful; Mr Ali’s claim was dismissed for giving misleading evidence and for exaggerating the claim.

Even if Mr Ali’s claim was found to be valid he would only have been entitled to €3,000 for general damages which would have been swamped by the costs of pursuing his case in the Circuit Court and then on appeal to the High Court.

Read the full decision in this useful High Court case here.

Categories
Negligence Personal Injury Claims

No Expert Opinion? Your Claim for Professional Negligence is Bound to Fail

If you are considering bringing legal proceedings for professional negligence the Court of Appeal has recently confirmed you will need an expert report or opinion. If you do not have such an opinion your claim is ‘bound to fail’ according to the High Court in Andrew Mangan (a minor) v Julian Dockeray and By Order Brian Denham and Mount Carmel Hospital.

In this case Mr. Mangan’s case against the defendants was dismissed by reason of the absence of expert medical evidence.

Background

Mr. Dockeray, a consultant obstetrician, had provided antenatal care to Mr. Mangan; Mr. Denham, a paediatrician, had provided neonatal care and Mount Carmel Hospital was where Mr. Mangan was born in 1995. It was at the time of his birth that Mr. Mangan had suffered various injuries including cerebral palsy.

In 2008 Mr. Mangan brought legal proceedings against Mr. Dockeray, the obstetrician. Mr. Dockeray brought an application to join Mr. Denham and Mount Carmel Hospital and this application was grounded on an affidavit of Mr. Dockeray’s solicitor. This affidavit stated that an expert opinion had been obtained by Mr. Dockeray and this expert report criticised the care provided by Mr. Denham and the hospital. This expert report was not exhibited in the solicitor’s affidavit, however, and Mr. Mangan never had sight of it.

Application to joint defendants

Mr. Mangan’s application to join the second and third defendants to his proceedings succeeded but Mr. Mangan confirmed he did not have any expert opinion or report which supported his claim against the second and third defendant; he was relying on the expert report of Mr. Dockeray’s, a report he had never seen.

The second defendant, Mr. Denham, the paediatrician and Mount Carmel hospital applied to have the proceedings against them struck out on the basis that Mr. Mangan had no expert report alleging negligence against them as required by the Rules of the Superior Courts (Order 19 Rule 28). Their argument was that the action against them had no prospect of success and was frivolous and vexatious, particularly in the absence of expert opinion against them.

Mr. Mangan was relying on the affidavit of Mr. Dockeray’s solicitor alleging negligence against Mr. Dockeray and the hospital but neither Mr. Mangan nor his legal team had seen this expert medical report.

High Court Decision

The High Court dismissed Mr. Mangan’s claim against the hospital and Mr. Dockeray for he had never made any allegations against them. Moreover, Justice Binchy found

  • Mr. Mangan’s expert report made no connection between his injuries and Mr. Dockeray and the hospital
  • Mr. Mangan could have sought more time to obtain his own expert report but had not done so
  • When a plaintiff declines to make any allegations against another party his pleadings will not disclose any reasonable cause of action, contrary to Order 19, Rule 28 of the Rules of the Superior Courts
  • It would fly in the face of logic to allow a claim against two defendants in circumstances where Mr. Mangan had made no allegations against them and he was merely relying on an affidavit of another solicitor which makes reference to a medical report but does not exhibit it in the affidavit.

Court of Appeal

Mr. Mangan appealed the decision of the High Court to the Court of Appeal and sought more time to obtain his own expert medical opinion. The Court of Appeal did not allow his appeal and decided the High Court had correctly applied the law to the facts of the case.

The Court of Appeal held that, having regard to the long timeline involved in this case, to give Mr. Mangan further time would be unfair to the hospital and the paediatrician.