LegalEagleStar

… a kind of Legal Column

I Witnessed a Brutal Car Accident

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Q: My name is Fidelma and I witnessed a brutal car accident where my husband was in the car in front of mine and a car swerved and crashed into the driver’s seat of his car. My husband was taken to the hospital and received medical attention and has a personal injury case pending in the courts at the moment. I was in such shock and distress because I instantly thought he had been killed and much of the day is a blur. I have terrible anxiety and have a fear of driving and am literally scared of everything. It feels silly but I attended my GP and he referred me to a clinical psychologist who I have been attending for several months. I know I wasn’t in the accident but it has caused me such psychological side effects and now I have to spend a lot of money attending the clinical psychologist who I find has helped me out greatly. I just wondered was there any way I could have a claim against the driver who caused the accident?

 

A: The law on what is termed ‘nervous shock’ has been awarded in cases for over 100 years (Byrne v Great Southern & Western Railway Co. of Ireland (1884) unreported; cited at 26 LR Ir 428). The most important case that has been ruled in the Courts in this regard was the case of Kelly v Hennessy [1995] 3 IR 253. This Supreme Court set out five elements that must be established in a case in order to recover damages for psychiatric injury:

(a) that he or she actually suffered a recognisable psychiatric illness;
(b) that such illness was shock-induced;
(c) that the nervous shock was caused by the defendant’s act or omission;
(d) that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff;
(e) that the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general.

You must also apply the test for negligence actions and show that a duty of care existed between the parties together with proximity, reasonable foreseeability and public policy considerations (Glencar Explorations PLC v Mayo Co Council [2002] IR 84). These elements must be established through the facts of each particular case together with the five elements as laid out by the Supreme Court. (Note, a case which the public policy grounds have prevailed is Alcock v  The Chief Constable of South Yorkshire Police [1991] 4 All ER 907).

In Kelly v Hennessy, the Plaintiff’s husband and two daughters had been seriously injured in a car accident caused by the Defendant. The Plaintiff was not at the scene but was informed by telephone and later brought to the hospital. Upon arriving at the hospital the Plaintiff witnessed the aftermath of the accident where one daughter spent a year in hospital and her husband and other daughter spent three months. The Plaintiff suffered depression and post-traumatic stress disorder (PTSD) as a result. The High Court awarded damages to the Plaintiff and held that her injuries were a reasonably foreseeable consequence of the Defendant’s negligence in the case. The Defendant appealed to the Supreme Court on a point of law and also against quantum. The Court considered the earlier case of Mullally v Bus Éireann [1992] ILRM 722 and the English case law, most notably, McLoughlin v O’Brian [1983] 1 AC 410. The Supreme Court upheld the decision of the High Court and set out the criteria in such a case which I have laid out above.

A recent Supreme Court decision is that of Devlin v National Maternity Hospital [2008] 2 IR 222. In this case the Plaintiff’s suffered shock and depression upon discovering that the Defendant hospital had retained the organs of their stillborn child without their previous knowledge and consent. The Plaintiff’s lost their case in the High Court as they could not satisfy element (d) of the Kelly v Hennessy elements in that they could not show that “the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff”. The Supreme Court upheld the High Court decision and found that the Plaintiffs had satisfied the remaining elements but not that of (d) and found that the law of negligence could not be extended to include such claims as any such extension could have serious repercussions. The Supreme noted, however, that they were not in any way endorsing the previous practice of the hospital which no longer took place.
The Court will consider the relationship between the Plaintiff and the primary victim (proximity of relationship), the time of the Plaintiff’s arrival at the scene of the accident (proximity in time and space) and the onset of symptoms (element of sudden shock).

With the limited facts that I have before me, Fidelma must consider the five elements as set down in Kelly v Hennessy and determine whether she can satisfy a court that she ticks all the boxes so to speak. There is also the general negligence criteria which a Plaintiff must establish. The relationship of husband / wife will normally satisfy the proximity of relationship element. Fidelma was at the scene and witnessed the accident so no question arises as to the proximity in time and space of the accident. In relation to the onset of symptoms, Fidelma has been referred to a clinical psychologist so I would suggest that the psychologist prepare a medical report setting out their opinion in relation to Fidelma’s prognosis and determine whether the accident caused the symptoms she complains of and whether she is or was suffering from PTSD.

 

LegalEagleStar , Wednesday , 16th February , 2011

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