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