PTSD 2007-2021
Defence Forces
The Supreme Court has accepted that post-traumatic stress disorder is a psychiatric illness. The Department of Defence has been held liable for failure to protect military personnel from post-traumatic stress disorder potentially arising from negligent deployment in a combat zone or more likely in failing to recognise warning signs and address and assist persons subject to trauma and PTSD.
Apprehended Danger
A and W v C and D [2007] I.E.H.C. 120 was a successful claim for liability for negligently caused psychiatric industry. Electricity was cut off and a wall was demolished in the context of a family property dispute. A party lying in bed who previously suffered psychiatric issues feared that the demolition of the wall exposed her family to danger
“… absolutely no doubt … that the defendants acted in a highly irresponsible and an extremely provocative manner in demolishing the wall. The reason giving by C for not awaiting the outcome of the correspondence between the solicitors was that he and his co-executor were frustrated at the pace at which the matter was moving. When he was asked in cross-examination whether he considered the risk of a serious incident if A was at home, his response was that he kind of expected that, but added that the wall was demolished in less than two minutes. C likened A to a child who is told he cannot have a sweet or a bully in the school yard when one tries to stand up to him. He said he, C, felt no responsibility for what happened and he had no regrets in relation to the manner in which the wall was removed. The quickest and least stressful method had been used from his perspective.”
The matter did “… not warrant the type of analysis which courts have had to embark on in the so-called ‘nervous shock’ cases, such as Kelly v. Hennessy [1995] 3 IR 253, or the so-called ‘fear of disease’ cases, such as Fletcher v. The Commissioners of Public Works. It seems to me that this case is more akin to the ordinary motor accident or workplace injury case than to the nervous shock case. If an adjoining landowner, at 6 a.m., demolishes a contentious wall at the back of a house in which a family reside, which is within earshot and sight of the house, a person in the house whom it may reasonably be foreseen may be traumatised by the manner in which the demolition is carried out must come within the ‘neighbour’ principle.”
“While it would appear that [the claimant] did not apprehend any physical injury to herself on the occasion, it is absolutely clear that the whole focus of her distress, stress and anxiety related to her perception that, because of the demolition of the wall, [her son] was in imminent danger of serious physical injury. [One psychiatrist] in his report expressed the opinion that it is reasonable to suggest that she was very concerned about [her son]’s safety and became obsessed about that aspect. [Another psychiatrist] …. said she was ‘obsessed’ about the wall and that its demolition had a devastating effect on her mental health. When he first saw her after the demolition of the wall, which was on 11th November, 2000, she was very distressed and referred constantly to the demolition of the wall and her fears in relation to” her son
Organ Retention
In Devlin v National Maternity Hospital [2007] I.E.S.C. 50 the Supreme Court rejected a claim made by the mother of a child who was stillborn and whose organs were retained by the hospital unknown to her. She suffered post-traumatic stress disorder on later learning of the position.
Hep C
DM v Minister for Health and Children [2018] IEHC 578 was a claim for nervous shock where the claimant;s father died from AIDS cuased by an infected blood transfusion. The psychiatric injury was sustained while she saw her father die. The Hep C Compensation Tribunal had reject the claim
“The horrific circumstances so often associated with the impending death as well as at and in its immediate aftermath from the complications of Hepatitis C or HIV infection do not easily equate with the so called ‘aftermath cases’ involving as they do the sudden apprehension by sight or sound of a horrifying and unexpected event or its immediate aftermath such by way of example as occurs with a plane, car or rail crash or the collapse of a building or other structure.
The qualifying event for recovery under s. 5 (3A) (a), is limited to the occurrence of death by virtue of having contracted Hepatitis C or HIV or where either or both of those infections were a significant contributory factor in the cause of the death. It is the cause and surrounding circumstances as well as the event of death itself which takes its occurrence into a realm which is out of the ordinary of experience of the end of life.
In just the same way as the circumstances of an unexpected accident are relevant at common law to causation and diagnosis of a recognised psychiatric illness so too are the circumstances attendant on a death from Hepatitis C or HIV if there is to be recovery under the provisions of s. 5 (3A) (a). Given the state of knowledge at the time when the provision was enacted, which is a matter of public record, and having due regard to the object for which the statutory scheme was established, had been the intention of the Oireachtas to limit or confine recovery of compensation for PTSD or Nervous Shock to the circumstances which pertain to the ‘aftermath cases’, it would have been necessary to expressly so provide. If the provision is to be so construed then absent a sudden and unexpected event such as an unexpected catastrophe or serious accident, in my judgement the provision would be rendered almost nugatory thus defeating the very purpose for which the provision was expressly enacted.
The circumstances of the deaths which had been suffered and were likely to be suffered by the victims of Hepatitis C and HIV at the time when s. 5 (3A) (a) was enacted were far removed from those usually encountered in a death which occurs naturally at the end of life. In providing a right to recover compensation for Nervous Shock or PTSD arising from the circumstances surrounding and the occurrence of death as a consequence of Hepatitis C or HIV, the Oireachtas recognised that psychiatric illness could be caused to the spouse, child or parents of the deceased.
In passing I pause to observe that the policy considerations and division of potential claimants into primary and secondary victims exemplified by Lord Wilberforce in McLoughlin v O’Brien [1983] 1 A.C 410 and adopted in Alcock do not necessarily reflect the law in this jurisdiction. See Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 and McMahon and Binchy 4th Ed. at 17.72 et seq.
In the event such considerations do not concern the Court on this appeal; the Oireachtas has confined the class of claimants who may recover for PTSD or Nervous Shock to the spouse, child and parents of the deceased rather than to the dependants within the meaning of s. 47(1) of the Civil Liability Act 1961, as inserted by s. 1 of the Civil Liability (Amendment) Act 1996.
For these reasons the adoption and application by the Tribunal of Lord Ackner’s statement of the law in Alcock, made as it was in the context of the ‘aftermath cases’, to found the basis for refusing the Appellant’s application was misplaced and inappropriate to an application for compensation in respect of PTSD or Nervous Shock under the statutory scheme. The death of a person from the complications of Hepatitis C or HIV is invariably not the result of a sudden and unexpected event such as a rail, plane or car crash or building collapse, quite the contrary, such deaths are all too often the end result of a long illness caused by the infection, deaths which are preceded and accompanied by immense suffering on the part of the victim which those closest, the spouse, children and parents are invariably required to witness directly or indirectly through the human senses.”
“At least such an interpretation has the benefit of being consistent with the legislative policy evident in Part IV of the Civil Liability Act, 1961 when it identified those entitled to recover damages for mental distress in fatal accident cases as being ‘any member of the family of the deceased’. While the causes of action are different, the principle determining who may recover seems to me to be the same, even if the scope for far larger awards arises in cases of nervous shock.”
Coming on Accident
In Sheehan v Bus Eireann/Irish Bus [2020] IEHC 160, the plaintiff was driving a car when she came upon a fatal accident, glimpsing a severely mutilated body. She suffered post-traumatic stress disorder.
Keane J.
“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.”
“Her 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 [she] was a primary, rather than secondary, victim of the accident …”
“If tort law were intended as an instrument of distributive justice, however imperfect, it would not permit the existence of a control device such as the duty of care. Moreover, its application as an instrument to that end would more obviously require the modification or abolition of the Alcock control mechanisms than the adoption in White of a further separate control mechanism in cases of psychiatric injury caused to rescuers. It may be that Judge McMahon [in Curran] had considerations of this sort in mind in observing that Lord Hoffman’s analysis raises fundamental questions about the purpose of the tort system in general.”
“even if it were otherwise appropriate to apply an exclusion of liability of the type identified in Greatorex (and I have already concluded that it is not), then the constitutional strictures under which our courts necessarily and properly operate would only permit that to occur as the result of the relevant rights-balancing exercise, rather than as the result of the application of an inflexible, one-sided rule.”
Terrifying Murder / Robbery
In Quinn v Topaz Energy Group Ltd [2021] IEHC 750, the claimant suffered PTSD due to the employer’s negligence and breach of statutory duty. There was a safety protocol applicable to aggravated robberies, but the relevant procedures were not implemented. There was no panic alarm. The plaintiff found herself in a terrifying situation for several minutes trying to contact authorities while a murder took place, leaving her in circumstances with callbacks from the emergency services alerting the murderer on the premises to her location and causing her to fear death.]]