Post Traumatic Stress Disorder and the Law
Increasingly in the area of personal injury law, the Irish courts are dealing with more cases as a result of negligence where the injury complained of is one of a psychiatric nature. Such cases either comprise of injuries which are either partially or wholly psychiatric based. Injuries which stem from nervous shock and which are triggered by it are known as Post Traumatic Stress Disorder (PTSD).
Under Irish Law, with some exceptions, personal injury cases are initially brought through the Injuries Board under the Personal Injuries Assessment Board Acts 2003 and 2007. However, under Section 17 of the Act, if the injuries alleged to be sustained consist wholly or in part of psychological damage the nature or extent of which it would be difficult to determine by means of assessment, the Board is not required to arrange for the making of an assessment under section 20, and in those circumstances the Board will issue the applicant or his or her solicitor with “an authorisation” for the purposes of legal proceedings.
In Irish law, injuries resulting in nervous shock which trigger post traumatic stress disorder, are increasingly commanding more importance by both the medical profession, legal profession and the judiciary.
It was not however until the Irish case of Byrne -v- The Great Southern Railway Company in 1884 (unreported) that the importance of a psychiatric illness as a basis for compensation in negligence was recognised.
In the case of Kelly -v- Hennessy which was heard by way of appeal from the High Court to the Supreme Court in 1995, the plaintiff’s husband and daughter were seriously brain damaged in a road traffic accident due to the negligence of the Defendant. The Plaintiff herself did not witness the accident but rather heard of the accident by telephone. She began to display symptoms of nervous shock and was then driven by neighbours to the hospital, where she witnessed her husband and daughter in a very distressed state. As a result she became extremely traumatised, and found it very difficult to cope upon their return home from hospital; when she was entrusted with their care. The illness which she suffered, and which was triggered by her nervous shock after the accident, is known as post traumatic stress disorder. The Court found in this case that the Plaintiff was entitled to recover damages against the Plaintiff for her illness.
It was also held in the case that in order for a plaintiff to be in a position to recover damages it must be established that:
1. The Plaintiff suffered from a recognisable psychiatric illness.
2. That the illness was shock induced.
3. The nervous shock was caused by some act or omission of the defendant.
4. That the nervous shock was sustained by reason of an actual or apprehended physical injury to the plaintiff or to a person other than the plaintiff.
5. That the defendant owed a duty of care not to cause a reasonably foreseeable injury in the form of nervous shock as opposed to a personal injury in general.
Justice Hamiltion also said in his judgment that the law permitted the recovery of damages for nervous shock and psychiatric illness in circumstances where the plaintiff came on the immediate aftermath of an accident either at the scene or at the hospital involving a person with whom a plaintiff had a close relationship. He went on to say that it was sufficient that the psychiatric illness which the plaintiff suffered was as a result of what the plaintiff heard or saw in the aftermath of the accident, at the scene, or even at the hospital where the injured parties were taken.
In the High Court case of Mullally v Bus Eireann 1992, the car being driven by the plaintiff’s husband was involved in a serious road traffic accident with the defendant’s bus resulting in the fatality of one of her sons and serious injury to her husband and two other sons. Whilst the other members of her family all recovered, the plaintiff herself suffered from symptoms of flashbacks and disturbed sleep, which essentially changed her from being an easygoing person to someone who became much more introverted. It was accepted that the nervous shock which she suffered triggered the psychiatric illness of post traumatic stress disorder. She was therefore in a position to satisfy the court of her altered persona. Having been diagnosed as suffering from post traumatic stress disorder it was held that she was entitled to recover damages against the defendant.
In cases therefore where a plaintiff can show they have suffered nervous shock which induces a recognizable psychiatric illness caused by negligence of a defendant, and the plaintiff can satisfy the essential criteria which have been laid down by the courts, damages in law are recoverable.
For more information on this topic, see below article on Damages for Mental Injury and Post Traumatic Stress Disorder
IMPORTANCE OF A PROPERLY DRAFTED WILL
The importance of having a Will properly drawn up and executed was made quite clear by Mr. Justice Paul Gilligan in a judgment handed down in late 2011. The learned judge ruled that the Will of the late poet, John O’Donoghue, was void for uncertainty. It transpired during the proceedings that the late Mr. O’Donoghue had not sought the benefit of legal advice and assistance and that this was evident from the terms of the Will.
Mr. Justice Gilligan determined that he was “unable to decipher the exact meaning” of the Will of Mr. O’Donoghue and this was due to the poor drafting contained in the testamentary document. Mr. O’Donoghue stated that he left all of his worldly possessions to his mother with the instruction that they were “to be divided equally and fairly among my family with special care and extra help” to his sister, Mary. However, this poor phrasing of his intentions left doubt in the court’s mind as to what was actually intended. The difficulty lay in the fact that the court could not decipher how the “mutually exclusive” instruction was to be interpreted. Mr. O’Donoghue had stated that his assets were to be divided equally among his siblings yet, contrary to this, his sister Mary was to benefit from further extra help. In addition, despite having left the entirety of his estate to his mother to divide, he then stipulated that further cash gifts were to be left to a number of other named recipients. The court would obviously have huge difficulty in correctly construing the intention of the late Mr. O’Donoghue given this further conflicting intent.
What can a person dispose of through his or her Will?
The Succession Act 1965 governs what may be disposed of by a Will or Codicil. S. 76 of the Act states that “A person may by his will, executed in accordance with this Act, dispose of all property which he is beneficially entitled to at the time of his death and which on his death devolves on his personal representative.” This may be done by way of the following:
Specific Legacy
This is a gift for specific items such as a watch/engagement ring etc. Based on the assumption that the deceased still owns the item at the date of their death it will pass to whomever it was bequeathed in the deceased’s will. However, if the specific item is disposed of by the Testator / rix during his or her lifetime or is lost or destroyed the gift will be adeemed i.e. the legacy is set aside and the beneficiary receives nothing.
General Legacy
This is a gift out of the remainder of the estate after due payment of debts and taxes owed by the deceased and after distribution of specific legacies. Such gifts are generally pecuniary (cash sums) in nature e. g. legacy of €250.00 to my nephew, John Smith. This legacy cannot be set aside but if the residue is insufficient to pay the debts of the deceased, general legacies will be the first to abate pro rata, e.g. they will be apportioned. For example, if there were general legacies amounting to €15,000 and, after due payment of the debts and expenses of the deceased’s estate, the balance remaining was €9,000 then each legatee would get 60% of his or her legacy.
Demonstrative Legacy:
This is a mixture of a specific and general legacy e. g. “I give to my cousin, John Smith €3,000 out of my bank account held with Bank of Ireland, College Green, Dublin 2”. This type of legacy is not set aside in that if the fund is insufficient to meet the legacy then it becomes a general legacy and assumes all the characteristics of a general legacy. It is, however, liable to abatement (apportionment) as referred to above.
Care should also be taken in deciding who to benefit and how he or she should receive that benefit. The following may be taken into consideration:
Lapsed Bequests
A gift may fail if a named beneficiary has predeceased the Testator / rix and the property will pass to the residue of the Estate of the deceased Testator / rix. However, there are certain exceptions to this rule which must be considered in drafting of a Will.
Conditional Bequests
It is open to a Testator /rix that he or she may impose a condition on a bequest in his or her will. In this situation, if the beneficiary fails to comply with the condition the said bequest will be forfeited. This type of bequest requires careful drafting in order that the gift will not lapse for lack of certainty.
子女是爱尔兰公民的非欧盟父母应享有长期居住权利
子女是爱尔兰公民的非欧盟父母应享有长期居住权利
近期，欧洲法院的在赞布拉诺案件审判中（Gerardo Zambrano v ONEM），判决子女有欧盟公民权的非欧盟父母拥有在孩子一方的欧盟国家的长期居住权利，这一判决将对爱尔兰移民法有着深远的影响。欧洲法院在这一案例中对欧盟法做出了详细解释。这一重大判决将意味着爱尔兰法庭以后在审判类似案件中会考虑以上判决。
这个案子最初起源于来自于哥伦比亚的赞布拉诺夫妇在比利时申请难民身份。 在他们申请难民身份的过程中，他们的小孩子在比利时出世了。根据当地法律，他们的小孩子是比利时公民。在申请难民身份被拒之后，赞布拉诺夫妇在比利时申请长期居住权利，其依据是孩子是比利时公民，但这一申请也随之被拒。赞布拉诺先生随即挑战这一判决，依据是作为比利时公民孩子的父母， 他们有权在比利时居住和工作。比利时法院随后向欧洲法院询问在这种情况下当地法院应怎样行使欧盟法律，尽管在这案子中，孩子作为比利时公民暂时还没有在行使欧盟法已赋予的欧盟内自由出行的权利。
欧洲法庭确认欧盟成员国有权处理本国是否发放公民权的权利。 但是，欧洲法庭继续说，一旦公民权被发放，欧盟法一定要确保欧盟公民能够充分享受欧盟法赋予的权利。欧洲法庭在判决还说如果作为欧盟公民的父母不能够在这一欧盟国居住和工作的话，那就意味着公民们没有真正享受欧盟法赋予的权利。
欧洲法庭据此得出的结论是欧盟法不允许欧盟国家拒绝子女有欧盟公民身份的非欧盟父母在这一国的长期居住权利，因为已是欧盟公民的未成年子女还得需要非欧盟的父母的照顾。这一判决将与在爱尔兰居住的其子女是爱尔兰公民，而他们的长期居住申请又被爱尔兰政府拒绝的非欧盟父母息息相关。
Commercial Mediation
Where once commercial disputes were largely the concern of corporate entities, the ever changing economic climate has widened the domain of this area of challenge. Many of us who have some degree of involvement with commercial agreements, whether it is as borrower, mortgagor or investor, are now dealing in the arena of commercial disputes. In the past, in order for a commercial dispute to be resolved, the main recourse of both parties to the dispute was to litigate the matter before the courts. This process, however, is very costly and time consuming and somewhat unpredictable given the complexities involved. In order to avoid this burdensome process, there is a stronger trend towards Alternative Dispute Resolution (ADR) which is an alternative to litigation in that parties to a dispute may resolve an issue by way of mediation, arbitration or expert adjudication. This trend in ADR is partly due to the newly implemented sections of the Rules of the Superior Courts and the Circuit Court Rules which permit the court to send parties to a dispute into the process of ADR by way of mediation to ensure the best efforts are made to resolve issues without recourse to the court.
Given the implementation of these new rules, there is a wider appreciation for entering the ADR process in advance of issuing or indeed throughout the course of proceedings. This new approach is in part due to the fact that a court may take into account the refusal of one party to enter into mediation in deciding on costs once the outcome of a case has been decided by the court. :
Mediation as a form of ADR aims to assist disputants in that they must enter a negotiation process that is conducted and lead by an impartial third party. As a general rule, mediation is a confidential process and is without prejudice to any ongoing or potential proceedings relating to the matter in dispute. The mediator does not have any role in making a decision of the issue in dispute and therefore control is retained by both parties to the process. The mediator does act in a constructive manner in leading the discussions and negotiations which are centred on the areas of disagreement. At any time throughout the mediation process, either party may disengage from the mediated discussion. As the process is entirely confidential, it allows discussions between the parties which would not be permitted or aired in a courtroom setting. This allows disputants to air grievances in a controlled setting as governed by the mediator. It also facilitates possible reconciliation between the parties and avoids a confrontational court setting where there is an outcome which favours one party over the other.
If an agreement is reached during the mediation process, it is reduced to writing, signed by both parties and it is not until this stage that is becomes legally binding. Once an agreement has been reached through the mediated process, the written agreement is an enforceable document which has a legally binding effect on the parties to the agreement. It is at this stage that legal advice in the drafting of the document and the implications of such an agreement into the future is of assistance. Even in circumstances where agreement is not reached and the dispute is returned to the court, the process can still add benefit to the court process as it may help in streamlining the areas of disagreement between the parties and will assist in the more fluid progression of the litigated case.
Given that mediation as an area of alternative dispute resolution may lead to a possible saving in time, cost, reputation and relationship, it is a strongly favoured approach where a commercial dispute exists and where litigating the matter may lead to a loss in all of the aforementioned.
Fatal Accident Claims
The firm of Aidan T Stapleton & Co has considerable experience in dealing with fatal accident claims on behalf of our clients over many years. Our experience extends to dealing on behalf of families where the deceased has died as a result of a road traffic accident, industrial accident, or has died through medical negligence. There are a great number of wrongful deaths in Ireland each year and because of the complex nature of these claims, our aim is to lessen the emotional and financial burden which invariably follows such an event, and to seek a satisfactory resolution for all the parties concerned as speedily as possible. We ensure that our clients are dealt with compassionately and efficiently whilst at the same time ensuring that they have the benefit of our experience in securing the best possible award of damages.
Fatal accident claims or fatal injury actions as they are also known, take the form of a “class action” where one action is brought on behalf of all the deceased’s dependants. Only the personal representative of the deceased is entitled to bring the fatal accident claim within the first six months; thereafter, all or any of the dependants are entitled to bring the action.
A dependant must have suffered financial loss or mental distress as a result of the deceased’s death and be related to the deceased as one of the following: spouse, parent, grandparent, step-parent, child, grandchild, brother, sister, half-brother, half-sister or a divorced spouse or person who cohabited with the deceased as husband or wife (the latter two categories are subject to additional conditions and limitations).
Damages in fatal accident claims are assessed by a Judge alone, and the Judge must set out the separate amounts to each dependant under the different heads of damage. The types of damages recoverable are
(a) financial loss suffered as a result of the deceased’s death,
(b) damages for mental distress as a result of the death (also known as a solatium) and
(c) damages for the funeral and other expenses incurred.
Damages for Mental Distress
The damages recoverable for mental distress alone are capped at €25,395, which is a very low figure bearing in mind this might cover a large number of dependants and is to be divided between them. This has to be distinguished from a cause of action involving nervous shock which might also have been caused as a result of the death.
Damages for Financial/Pecuniary Loss
The principal type of damages recoverable in a fatal injury action is one of financial loss/pecuniary loss suffered by the dependants. The damages awarded under this heading can be extensive depending on the level of financial dependency that existed at the time of the accident. The plaintiff must however prove the financial loss which each of the dependants could reasonably have been expected to receive during their lifetimes, had the deceased not died as a result of the wrongful act.
An actuary is consulted to work out the full extent of the loss, and a report is then done up by the actuary setting it out. Damages run from the date of death, and the job of the actuary is to examine and establish the financial factors existing at the time of death giving rise to the loss, as well as the likely future financial losses. The report then forms the basis of the loss, which is relied upon in any settlement negotiations, or if the case proceeds to hearing.
Non EU Parents of Irish Citizens should be entitled to Residency
A recent judgment in the European Courts of Justice in the case of Gerardo Ruiz Zambrano v Office national de l’emploi (ONEM) will have major implications for Irish law in that the judgment provides for the non-EU parents of European citizens to avail of residency rights in the country of the European citizen’s birth. This European judgment in its interpretation of EU law will have direct implications for Ireland in that the Irish courts will have to take the judgment into account in deciding any cases coming before the court which are of a similar nature.
The case arose from Colombian citizens, Mr. & Mrs. Zambrano, and their applications for asylum in Belgium. During their applications for asylum being processed, the couple gave birth to children who were entitled to avail of Belgian citizenship. After being refused asylum, the couple applied for residency in Belgium based on their parentage of the Belgian citizen children and were refused. The Colombian father of the children, Mr. Zambrano, challenged this decision stating that the couple were entitled to reside and work in Belgian based on their parentage of Belgian nationals. In relation to this challenge, a referral was made to the European Court of Justice on whether or not EU law could be applied even though the children were living as Belgian citizens under the domestic law of Belgium and not exercising their EU Treaty rights of the free movement of persons.
The European Court of Justice confirmed that a member state of the EU has the jurisdiction to deal with the right to acquire citizenship of that member state, however that once the citizenship has been acquired, EU law precludes any measures which will deprive the nationals of that country from the “genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the union”. The court also rules that the deprivation of the citizen’s parent’s right to live and to work in their child’s country of nationality amounted to such a denial of rights.
The court thus decided that EU law prevents the refusal of residency by member states to non-EU citizen parents of minor children who are still dependent on their parents. This is very relevant to non-EU citizens living and residing in Ireland who have been refused residency by the Irish authorities and who are the parents of Irish citizen children resident in this State
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010
The Civil Partnership and Certain Rights of Cohabitants Act 2010 came into effect on the 1st January 2011. The Act has two separate sections which each deal with (1) Civil Partnership and (2) Cohabitants Rights independently of each other.
CIVIL PARTNERSHIP
This section introduces a system for the registration of civil partnerships and intended to set out the rights and obligations arising from the registration of Civil Partnerships such as succession rights, pension rights, maintenance and shared home protection status. The Act also deals with what happens on the dissolution of a civil partnership and provides that orders may be made similar to those granted on Judicial Separation or Divorce.
COHABITANTS
This section of the Act creates a financial redress system for those qualifying as cohabitants. Cohabitants as defined by the Act can apply for compensation at the end of a relationship based on certain rights. These rights newly created by the Act are applicable to those qualifying provided that the cohabiting parties have not contracted out of them. There is no requirement for registration of the cohabitating couple’s relationship such as marriage or civil partnership. There is no automatic entitlement to these rights and it is only the court that can enforce them upon application by one of the cohabitating parties. In moving away from previous court judgments, Ennis v Butterly 1996 1 IR 426, there is now recognition under the Act for a Cohabitants’ Agreement. This agreement provides for financial matters during the course of the relationship or when the relationship comes to an end. The parties to the Cohabitants’ Agreement can either elect to accept of refuse the legal rights conferred upon them by the Act.
1. CIVIL PARTNERSHIP
For the purposes of the Act, a civil partner is either of two persons of the same sex who have entered into the legal registration of the civil partnership with each other. This registration of the civil partnership grants rights and duties on each of the civil partners similar to those of marriage including the duty to live together, to maintain each other and to benefit on death under the Succession Act 1965. The Act also treats civil partners similarly to spouses for the purpose of the Domestic Violence Act and the Pensions Act. On the dissolution of a civil partnership, either party to the partnership may apply to the court to be considered for orders similar to those available to spouses when pursuing Judicial Separation or Divorce. These include provision for maintenance, preservation or removal of succession rights, treatment under the pension acts and property adjustment orders.
Protections granted to civil partnerships in respect of the shared home are very similar to those granted to spouses under the Family Home Protection Act 1976. The Act prevents the sale of transfer of the shared home by one civil partner without the prior consent in writing of the other civil partner.
Where one civil partner to a partnership applies to court to be considered for maintenance under the Act, the court must decide whether if the other civil partner has failed to provide maintenance or the other partner that is proper in the circumstances. There is no provision for dependent children under the Act.
Civil partners are now treated in the same fashion as spouses under the Succession Act 1965. A civil partner is now entitled to a legal right share of one half of the estate of the deceased partner where there are no children and one third of the estate where there are children. On intestacy, the surviving civil partner is treated the same as the spouse save where on application by a child of either civil partner the court is of the opinion that it would be unjust not to provide for the child. As with marriage, civil partnership revokes a Will unless it was done in contemplation of civil partnership.
Civil partners may equally apply under the provisions of the Domestic Violence Act 1996 for Protection Orders, Safety Orders and Barring Orders.
A Decree of Nullity of the civil partnership may be granted by the Court on application by either civil partner and taking into account certain factors.
A Grant of Dissolution (similar to that of Divorce) may be granted to civil partners on application by one or both of them. The court must be satisfied that
(a) at the date of the institution of the proceedings, the civil partners have lived apart from one another for a period of, or periods amounting to, at least two years during the previous three years, and
(b) provision that the court considers proper having regard to the circumstances exists or will be made for the civil partners.
2. COHABITANTS
The section in the Act dealing with cohabitants sets out an entirely separate legal basis for two parties living together who have not formalised their relationship by either civil partnership or marriage. Pursuant to the implementation of the Act on 1st January 2011, cohabitants now have rights to include but not limited to make an application to the court to be considered for maintenance for themselves, rights under the Succession Act and rights to their cohabiting partner’s pension. Where previously property held jointly by cohabiting partners or where there were financial contributions to a property by either cohabiting partner, this was the only legal redress to cohabitants in respect of the shared home and this was dealt with by way of partition proceedings. The new Act opens up new areas of redress for those qualifying cohabitants.
A Cohabitant is defined under S.173 of the Act as “one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.”
The Act sets out certain parameters by which a cohabiting relationship may be assessed. A qualifying cohabitant is defined in the Act as someone who has cohabited with another adult for a period of five years. Where there is a dependent child of the cohabiting relationship, the qualifying period is reduced to two years. These qualifying periods are limited to those freely able to enter into a marriage or civil partnership or, where one of the cohabiting parties is married, where that partner has lived separate and apart from his or her spouse for a period of four out of the last five years.
Those qualifying under the Act may seek financial redress from the court on either the death of a cohabiting partner or at the end of the cohabiting relationship. In order to succeed on application under the redress scheme, the qualified cohabitant must also satisfy the court that they are financially dependent on the other cohabitant and that this dependence arises from the relationship or arises on the termination of the relationship. Any decision by the court will take into account whether or not any order made in favour of the qualified dependent would affect the right of any person to whom the other cohabitant is or was married. The court will also have cognisance of the following:
(a) the financial circumstances, needs and obligations of each qualified cohabitant existing as at the date of the application or which are likely to arise in the future,
(b) subject to subsection (5), the rights and entitlements of any spouse or former spouse,
(c) the rights and entitlements of any civil partner or former civil partner,
(d) the rights and entitlements of any dependent child or of any child of a previous relationship of either cohabitant,
(e) the duration of the parties’ relationship, the basis on which the parties entered into the relationship and the degree of commitment of the parties to one another,
(f) the contributions that each of the cohabitants made or is likely to make in the foreseeable future to the welfare of the cohabitants or either of them including any contribution made by each of them to the income, earning capacity or property and financial resources of the other,
(g) any contributions made by either of them in looking after the home,
(h) the effect on the earning capacity of each of the cohabitants of the responsibilities assumed by each of them during the period they lived together as a couple and the degree to which the future earning capacity of a qualified cohabitant is impaired by reason of that qualified cohabitant having relinquished or foregone the opportunity of remunerative activity in order to look after the home,
(i) any physical or mental disability of the qualified cohabitant, and
(j) the conduct of each of the cohabitants, if the conduct is such that, in the opinion of the court, it would be unjust to disregard it.
A qualifying cohabitant can only seek redress under the Act two years from the end of the relationship whether by death or otherwise.
A cohabitants’ agreement is valid only if—
(a) the cohabitants—
(i) have each received independent legal advice before entering into it, or
(ii) have received legal advice together and have waived in writing the right to independent legal advice,
(b) the agreement is in writing and signed by both cohabitants, and
(c) the general law of contract is complied with.
The court may vary or set aside a cohabitants’ agreement in exceptional circumstances, where its enforceability would cause serious injustice.
Children and Section 117 Claims under Succession Act 1965
Under the provisions of Section 117 of the Succession Act 1965 where a child of a deceased parent can show that the deceased has failed to make proper provision for the child in accordance with his means whether by will or otherwise, the child can bring an action pursuant to the Act for relief. The definition of a child includes adopted, non-marital, foster and step children. Whereas the Courts are reluctant to intervene in an estate of someone who has made a will with specific provisions contained therein it will intervene if an applicant can show that; the parents had a moral duty to provide, the parents failed in that moral duty and the applicant child now has a need.
A section 117 application must be made within six months of first taking a grant of representation in the deceased’s estate. There is however no obligation on an executor to an estate to notify the children of their right to bring a Section 117 claim.
In one of the most recent reported cases under section 117 X.C. v. R.T.(Succession: proper provision) Kearns J. set out with approval the relevant principles which had been agreed by counsel as established by the considerable body of case law. Kearns J. said that;-
“Counsel on both sides were agreed that the following relevant legal principles can, as a result of these authorities, be said to derive under section 117:-
(a) The social policy underlying section 117 is primarily directed to protecting those Children who are still of an age and situation in life where they might reasonably expect support from their parents, against the failure of parents who are unmindful of their duties in that area.
(b) What has to be determined is whether the testator at the time of his death, owed any moral obligation to the children, and if so, whether he has failed in that obligation.
(c) There is a high onus of proof placed on the applicant for relief under section 117, which requires the establishment of a positive failure in moral duty.
(d) Before a court can interfere, there must be clear circumstances and a positive failure in moral duty.
(e) The duty created by section 117 is not absolute.
(f) The relationship of parent and child does not itself and without regard to other circumstances, create a moral duty to leave anything by will to the child.
(g) Section 117 does not create an obligation to leave something to each child.
(h) The provision of an expensive education to a child may discharge the moral duty as may other gifts or settlements made during the lifetime of the testator.
(i) Financing a good education so as to give a child the best start in life possible and providing money, which, if properly managed, should afford a degree of financial security for the rest of one’s life, does amount to making proper provision.
(j) The duty under section 117 is not to make adequate provision but to provide proper provision in accordance with the testator’s means.
(k) A just parent may take into account not just his moral obligations to his children and to his wife, but all his moral obligations e.g. to aged and infirm parents.
(l) In dealing with section 117 applications, the position of an applicant child is not to be taken in isolation. The court’s duty is to consider the entirety of the testator’s affairs and to decide upon the application in the overall context. In other words, while the moral claim of a child may require a testator to make a particular provision for him, the moral claims of others may require such provision to be reduced or omitted altogether.
(m) Special circumstances giving rise to a moral duty may arise if a child is induced to believe that by, for example working on a farm he will ultimately become the owner of it, thereby causing him to shape his upbringing, training and life accordingly.
(n) Special needs would also include physical or mental disability.
(o) Another example of special circumstances might be a child who had a long illness or an exceptional talent which it would be morally wrong to foster.
(p) Although the court has very wide powers both as to when to make provision for an applicant child and as to the nature of such provision, such powers must not be construed as giving the court a power to make a new will for the testator.
(q) The test to be applied is not which of the alternative courses open to the testator the court itself would have adopted if confronted with the same situation but, rather, whether the decision of the testator to adopt for the course he did, of itself and without more, constituted a breach of moral duty to the plaintiff.
(r) The court must disregard the fact that parents must be presumed to know their children better that anyone else.”
If you feel that adequate provision has not been made for you under your parent’s will please consult with us with you without any obligation. To make an enquiry please phone us at 01 6797939, or fill in our Online Enquiry Form.
Damages for Mental Injury and Post Traumatic Stress Disorder
Post Traumatic Stress Disorder or PTSD and other mental injuries are life changing events for many people. PTSD itself is an anxiety disorder which can be traced directly to an original trauma which a person has either experienced or been exposed to, or in which that person has been directly involved.
It is a compensable category of damages in personal injury cases if negligence is proven against the person responsible for its causation. It can also arise out of a trauma occasioned to an employee in the course of his employer’s employment where the employer has been negligent. Such trauma can be caused through negligent work practices or indeed may be work stress, bullying, or harassment related, but must be reasonably foreseeable in causing the psychiatric illness.
A case involving psychiatric injury in the form of PTSD involves some trauma or tragic event. It usually follows exposure to “an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury or other threat to one’s physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm or threat of death of injury experienced by a family member or other close associate. The person’s response to the event must involve intense fear helplessness or horror. The characteristic symptoms resulting from the exposure to the extreme trauma include persistent re-experiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, and persistent symptoms of increased arousal. The full symptom picture must be present for more that 1 month and the disturbance must cause clinically significant distress or impairment in social, occupational or other important areas of functioning”
Irish courts rely on medical evidence based on these criteria in making awards of compensation, although not all cases are compensable in Irish Law. There are some categories of cases which are not capable of being compensated, for example a plaintiff who brings a claim for grief or bereavement (which is not classified as mental injury) for the loss of a loved one arising out of the negligence of a third party, or a soldier who develops a psychiatric disorder from combat per se. However damages can be awarded in such situations where a psychiatric injury has been caused or contributed to by the plaintiff’s employer who exposes the plaintiff to unnecessary risks or who fails to monitor or treat early signs of that injury.
PTSD as a general rule normally shows and manifests itself within three months of a trauma occurring, although there are many cases where this does not happen within this time frame. Diagnosis of PTSD is done by means of psychiatric assessment through the interview process, although other complementary and more sophisticated methods for its diagnosis also exist. It is generally treated though a combination of medication and psychotherapy.
Even though a plaintiff may be suffering from a psychiatric disorder, the law nonetheless requires as a general rule that there exist a degree of proximity of a plaintiff to an accident itself, as well as proximity of a relationship between a plaintiff and a victim of an accident. The psychiatric injury must be caused by reason of a defendant’s negligent act or omission, and it must be an actual apprehended physical injury to the plaintiff or to a person other that the plaintiff. Additionally there must exist a duty of care between a plaintiff and a defendant, and the event complained of must be reasonably foreseeable.
If you have been unfortunate enough to be a victim of a trauma which has resulted in PTSD or some other form of psychiatric illness as a result of the negligence of third party, you may have a remedy in law.
Our firm has successfully dealt with many accidents over many years resulting in PTSD, nervous shock, and other forms of psychiatric illness. If you have been the victim of a trauma which has resulted in any of these illnesses we can help you.
Please contact us at (01) 6797939 or;
Email us at info@astapleton.com
for a free assessment of your case.
Child Abduction and the Hague Convention
The Hague Convention has been adopted in some 84 countries and seeks to ensure that any child who is under the age of 16 years of age and who has been abducted or wrongfully removed from his or her country is returned to it. Its implementation in Irish Law is under the Child Abduction and Enforcement of Custody Orders Act, 1991
In the main the function of the convention is to seek the return of children to their habitual place of residence from some other country to which they have been brought and in which they are being detained.
For the purposes of the Convention a child means a person of any nationality, so long as he is under the age of 16 years of age and has not the right to decide on his own place of residence under the law of his habitual residence, the law of his nationality or the internal law of the State addressed. The usage in the act of the term “child abduction” is not particularly helpful because in most cases children are brought from one jurisdiction to another by one of their parents, or perhaps their guardians to whom their care has been entrusted.
A child’s removal or retention is considered to be wrongful if it is in breach of the custody rights of a person or an institution which may have been granted custody rights, where those custody rights have been exercised in the State of habitual residence of that person.
Each country under the Convention designates a Central Authority which will deal with other Central Authorities to procure the return of the child. In Ireland this function is carried out by the Minister for Justice. In practice what happens is that if a child is abducted from its habitual place of residence to another country where it is now being detained, the Minister for Justice here contacts the Central Authority in the country to which the child has been removed with a view to seeking the child’s return. Central Authorities are obliged to co-operate with one another and to take immediate steps to discover the whereabouts of a child who has been wrongfully removed or retained and to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child. Under Article 8 any person institution or body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or the Central Authority of any other Contracting State to the Convention for assistance in securing the return of the child.
In cases where a child has been abducted an applicant who has a right to free legal aid and the applicant should then contact a solicitor or a law centre who will then make an application to the High Court for the return of the child. The High Court is obliged under Article 11 of Regulation 2201/2003 to have court procedures which are the most expeditious procedures available in national law so as to ensure there is no delay in dealing with a person’s application, and the Court is obliged to issue its judgment within 6 weeks normally, except where delay is unavoidably encountered.
Under Article 11(2) of Regulation 2201/2203 a child who is abducted is given the right to be heard in any proceedings unless this would be inappropriate having regard to his or her age or degree of maturity. In practice children who are 8 years or older are interviewed by a child psychologist or social worker or some other person who has experience in dealing with children. This person then prepares a report for the court which is then sent to both parties. Following the report either party can request the person who prepared the report to be available in court for cross-examination.
At the core of the Convention is the basic premise that any child who has been wrongfully removed in respect of whom an application has been made within one year of that child’s removal, must be returned to the country of habitual residence. Furthermore, Article 12 imposes a mandatory obligation to do so. The rationale for this is simply that the courts in a child’s country of habitual residence are seen as the most appropriate forum for determining custodial and other disputes and ultimately best placed to act in the child’s best interests where there are disputes between the child’s parents.
There are however some exceptions to Article 12 which imposes a mandatory obligation on the courts to return a child which are dealt with in Article 13. The exceptions are as follows:
- The rights of custody were not actually being exercised at the time of removal or retention
- The applicant consented to or acquiesced in the removal or retention
- That the return of the child would expose the child to physical or psychological harm or otherwise expose the child to an intolerable situation.
- Where the child objects to being returned and has reached an age and level of maturity which is appropriate to take account of his or her views
- Where it is established that 12 months have elapsed before the date of the application and the child is now settled in a new environment.
It should be pointed out that even where the above exceptions have been established the courts still have a discretion to order the child’s return and will ultimately act in what it feels is in the best interests of the child.
Many cases before the courts are resolved without full hearing where the parties are able to agree terms and put in place orders under the Guardianship of Infants Act, 1964 and the Family Law Act 1995 affecting the child’s welfare. In cases where proceedings have already been started in the High Court for a child’s return or indeed been initiated in some other court seeking custody orders in the District or Circuit Courts, then these proceedings must be stayed once an application has been made under the Convention.