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Martina Fitzpatrick  v Aldi Stores Ireland Ltd

2 May 2018, Dublin Circuit Court, Judge Terence O’Sullivan

While dropping her daughter’s friend in the car park of Aldi, Gort, Co Galway, in December 2015, the Plaintiff, Martina Fitzpatrick (aged 52) claimed that the car park barrier came down on her car, damaging it. This was not disputed by the Defendant, Aldi Stores Ireland Ltd, who had paid for the material damage to Ms Fitzpatrick ’s vehicle.

Telling the Court she had not come to court to seek some “humongous amount of damages for physical injuries”, the Plaintiff instead noted that she had developed a fear of barriers, often now ducking when driving under them on motorways.

She confirmed had not been physically hurt as a result of the incident.

Dismissing Ms Fitzpatrick’s claim entirely, the Judge indicated that he must apply the law in respect of nervous shock.

Holding that the Plaintiff did not meet the criteria to be awarded damages for a recognised shock-induced psychiatric illness, Judge O’Sullivan applied the five criteria set out by the Supreme Court in Kelly v Hennessey [1995] 3 IR 253, namely:

1. The Plaintiff must establish that they actually suffered “nervous shock”. This term has been used to describe any recognised psychiatric illness.
2. The Plaintiff must establish that his or her recognised psychiatric illness was shock Induced.
3. The Plaintiff must prove that the nervous shock was caused by the Defendant’s act or omission.
4. The nervous shock sustained by the Plaintiff must be by reason of actual or apprehended physical injury to the Plaintiff or person other than the Plaintiff.
5. The Plaintiff must show that the Defendant owed him or her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock.

As Ms Fitzpatrick had not satisfied the recognised conditions for nervous shock, and that her anxiety did not come within the recognisable heads of damage which are compensable, Judge O’Sullivan ruled that no award could be made.

Dismissing her claim, the Judge said that the Plaintiff had not established any damage to her, other than being anxious of barriers. He commended Ms Fitzpatrick for her honesty, and made no order as to costs.

28 September 2018

Carrie McDermott

Update by Carrie McDermott, MDM Solicitors

20 September 2018

The final report of the Personal Injuries Commission was published on 18 September 2018. The Commission, chaired by Mr Justice Nicholas Kearns, was established following the Report of the Cost of the Insurance Working Group, published in January 2017.

The Commission noted:
1. There is a high risk of abuse of the claims system in Ireland because the risk of prosecution for fraudulent claims is “virtually zero”.
2. Awards for soft tissue injuries in Ireland were in excess of four times greater than those in the UK, averaging €17,338 in Ireland compared to €3,984.

The Commission carried out a wide-ranging comparison of care not cash compensation, including countries as disparate as Spain and Canada. The Commission also considered the introduction of more nuanced forms of insurance products to provide for telematics (or ‘black box’) cover.

Following on from its first report, published December 2017, the Commission has now made ten further recommendations:

1. A Judicial Council be requested by the Minister for Justice and Equality to compile guidelines for appropriate general damages for various types of personal injury
2. The Judicial Council Bill 2017 be moved through the Oireachtas.
3. The Law Reform Commission review the Commission’s findings as part of the LRC’s report into proposed legislation to cap damages awards.
4. Persons who suffer soft tissue injury receive timely, appropriate, and effective treatment as part of a standard treatment plan to improve patient outcomes, and lead to downward pressures on costs associated with soft tissue injuries.
5. Where an Insured deals directly with a claimant, no offers of settlement or payment be made until a medical report is first obtained.
6. Claimants must provide prompt notification of any personal injury claim to ensure that a proper investigation of the accident circumstances can be undertaken by a defendant.
7. The establishment of a Garda unit similar to the UK Insurance Fraud Enforcement Department to police fraudulent claims.
8. That insurers step up anti-fraud activity through appropriately trained personnel and the further development of technological means.
9. The adoption of a standardised, internationally-recognised injury coding system by insurers.
10. The establishment of a national medical research study into the prevention and management of soft tissue injuries.

For more information, contact Carrie McDermott, Partner, MDM Solicitors
Carrie.McDermott@mdmsolicitors.ie

High Court, 14^th February 2018, Barrett J

Purcell, Anthony v Tesco Ireland Ltd and David McInerney [2017] IEHC 68

Tynan, Murphy & Yelverton – solicitors for the plaintiff

O’Rourke Reid – solicitors for the defendants

Background

The plaintiff filed an appeal against the order of the Circuit Court for refusing the plaintiff’s application for the amendment of the personal injury summons. The plaintiff only wanted to include a statement that he had first felt pain in the course of stocking shelves. The plaintiff contended that his earlier submission was that he was injured by pushing trolleys. The defendants alleged that by way of the proposed amendment, the plaintiff was trying to introduce new elements, which could not be allowed.

Outcome

Barrett J allowed the plaintiff’s appeal. The Court relied on the case of Smyth v Tunney [2009] 3 IR 322, where it was stated that facts might be added by amendment if they served to clarify the original claim but not if they were new facts. The Court held that it would allow the amendment sought by the plaintiff in the personal injury summons as the plaintiff’s main contention was the same that he sustained injuries due to the pushing of trolleys as alleged by him earlier.

The Court noted that the proposed amendment merely clarified that the plaintiff had first felt pain while stocking the shelves and not by pushing the trolleys, which he sought to rectify. The Court held that it did not see anything in the facts of the within application that could cause prejudice to the defendants.