Courtney v Our Lady's Hospital Ltd (t/a Our Lady's Hospital Crumlin) and Others

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 27 May 2011
• Neutral Citation: [2011] IEHC 226
• Court: High Court
• Docket Number: [2008 No. 1225P]
• Date: 27 May 2011

[2011] IEHC 226

THE HIGH COURT

[No. 1225 P/2008]

Courtney v Our Lady's Hospital Ltd (t/a Our Lady's Hospital Crumlin) & Ors

BETWEEN

NATALIE COURTNEY

PLAINTIFF

AND

OUR LADY'S HOSPITAL LIMITED T/A OUR LADY'S HOSPITAL CRUMLIN, JACKIE MURRAY AND SANDRA WALSH

DEFENDANTS

CIVIL LIABILITY ACT 1961 PART IV

CIVIL LIABILITY ACT 1961 S49(2)

WHITE IRISH LAW OF DAMAGES FOR PERSONAL INJURIES & DEATH 1989 622

MAGEE v FARRELL & ORS 2009 4 IR 703

GRANT v ROCHE PRODUCTS (IRELAND) LTD 2008 4 IR 679

CONDON v CIE UNREP BARRINGTON 16.11.84 1985/1/52

RAILWAY REGULATION ACT 1844 S7

INQUEST

Costs

Fatal injuries claim - Whether costs of legal representation at inquest recoverable - Purpose of inquest - Role of legal representation - Whether phrase "other expenses actually incurred" could include cost of legal representation at inquest - Grant v Roche Products (Ireland) Ltd [2008] IESC 35, [2008] 4 IR 679, Condon v CIE (Unrep, Barrington J, 16/11/1984) and Magee v Farrell [2009] IESC 60, [2009] 4 IR 703 considered - Civil Liability Act 1961 (No 41), ss 48 and 49 - Cost awarded (2008/1225P - O'Neill J - 27/5/2011) [2011] IEHC 226

Courtney v Our Lady's Hospital Ltd

TORT

Fatal injuries

Damages - Remoteness - Other expenses - Whether costs of legal representation at inquest recoverable - Whether phrase "other expenses actually incurred" could include cost of legal representation at inquest - Grant v Roche Products (Ireland) Ltd [2008] IESC 35, [2008] 4 IR 679, Condon v CIE (Unrep, Barrington J, 16/11/1984) and Magee v Farrell [2009] IESC 60, [2009] 4 IR 703 considered - Civil Liability Act 1961 (No 41), ss 48 and 49 - Damages including costs awarded (2008/1225P - O'Neill J - 27/5/2011) [2011] IEHC 226

Courtney v Our Lady's Hospital Ltd

Facts: The plaintiff sought damages for nervous shock arising from the circumstances of the death of her daughter in the hospital of the defendants in 2006. The defendants conceded liability and the case proceeded by way of an assessment only. The plaintiff suffered significant depressive illness. The question arose as to the recoverability of the legal costs of the plaintiff at the inquest and whether the costs were foreseeable within the meaning of the Civil Liability Act 1961.

Held by O'Neill J. that the plaintiff had a liability to her legal representatives in respect of their reasonable costs in providing that legal presentation at the inquest. The Court would allow a brief fee of Eur 3000 and an instruction fee of Eur 7000. Costs of the legal representatives at the inquest was an entirely foreseeable consequence of the defendants wrongful act within the meaning of s. 49(2) of the Civil Liability Act 1961. The appropriate sum to compensate the plaintiff by way of general damages was Eur 75,000 and Eur 75,000 for general damages in the future.

Reporter: E.F.

1 1. In these proceedings, the plaintiff sues for damages for nervous shock suffered by the plaintiff arising from the circumstances of the death of the plaintiff's daughter, Aisling, in the defendants' hospital in the early hours of Sunday 19 ^th February, 2006. The defendants have conceded liability and the case proceeded as an assessment of damages only.

2 2. The facts relevant to the issues to be determined by me are as follows.

3 3. The plaintiff, who was born on 7 ^th September, 1982, and her partner, Leslie Maher, had, when the events which gave rise to these proceedings occurred, three children. The first of these, Caitlin, was aged four and a half years at the time, and her other two children, who are twins, are Aisling and Aaron, were born on 18 ^th July, 2003.

4 4. On the evening of 18 ^th February, 2006, the plaintiff and her partner put the twins to bed as usual, and Aisling, at that stage, was well. At 11.30pm, Aisling was awake and the plaintiff heard her crying. She was given Calpol but did not keep this down. She appeared to be hallucinating and pointed to the back of her neck as being sore. The plaintiff became immediately concerned and she and Leslie decided to bring her to Crumlin Hospital, which was nearby, the plaintiff and her partner were then living at 54, Galtymore Close in Drimnagh. They were at the hospital at about midnight and Aisling was examined by a Triage nurse who gave her Paracetamol. The plaintiff and her partner remained with Aisling awaiting attention in the hospital throughout the night. During that time, at about 3,00am, Aisling developed a rash on her back. The plaintiff, in her evidence, described repeatedly requesting attention throughout the night. Between 7.00am and 7.30am. Aisling was examined by a doctor who said she had a viral gastric bug which would last 24-hours and she was mildly dehydrated. Aisling had developed purple stops, and at about 7.30am, she was put on a drip. At some stage thereafter, the plaintiff was informed that Aisling was being treated for meningitis and she was connected to a variety of medical equipment. Her condition rapidly deteriorated and she was brought to the Intensive Care Unit where she suffered a heart attack and died at 10.25am on the morning of Sunday 19 ^th February, 2006. Apart from the half-hour or so when Aisling was in intensive care, the plaintiff had been with Aisling at all times.

5 5. The plaintiff's immediate and very understandable reaction to these horrific events was one of intense shock, and it is in respect of that "nervous shock" and the psychiatric illness that has resulted from it that she now seeks to recover damages.

6 6. The very difficult complicating feature in the assessment of damages in this case is distinguishing between the psychiatric illness suffered by the plaintiff as a result of her being present and witnessing the shockingly traumatic sequence of events that night, from the natural grief which would, and indeed, has resulted from the tragic death of Aisling. In this respect, the plaintiff, as one of the dependents of Aisling within the meaning of Part IV of the Civil Liability Act 1961, has been compensated for her mental distress, subject to the statutory limit in that regard, in proceedings that culminated in the order of this court (DeValera J.) made on 15 ^th December, 2010, wherein DeValera J. approved the sum of €32,111.13, in settlement of the claim on behalf of the dependents of Aisling.

7 7. Apart from suffering, as was only to be expected, a grief reaction which may, indeed, have become a prolonged grief reaction, I am quite satisfied from the evidence of the plaintiff and her partner, Leslie, and from the evidence of her General Practitioner, Dr. Miriam Carey, and of Dr. Rita Condron, a consultant psychiatrist in St. James's Hospital, who saw her on four occasions between 18 ^th May, 2006, and 24 ^th October, 2007, and also the evidence of Dr. John Ryan, a consultant psychiatrist, who saw her on 23 ^rd November, 2010, that the plaintiff suffered a significant depressive illness, which, I am satisfied, was caused by her exposure to and experiencing of the shockingly traumatic sequence of circumstances in the defendants' hospital, culminating in the death of Aisling. Over a period of in excess of a year, the plaintiff attended Dr. Finnegan, a psychologist in St. Martha's Unit attached to St. James's Hospital, on a very regular basis, but had to discontinue this therapy because she found it too distressing. The plaintiff also availed of antidepressant medication but was disinclined to continue reliance on this type of medication, being apprehensive of long-term dependence on same.

8 8. Since the death of Aisling, the plaintiff's life has changed utterly, and she has become, to a significant extent, disabled or dysfunctional across a broad range of the normal activities of daily living. Whereas before, she had no history of psychiatric illness and was a bright, outgoing individual who coped easily and cheerfully with the normal burdens of life, she has, since these events, become socially withdrawn, to the extent of not having gone out socially with her partner since then, and has abandoned all thought of developing her vocational life. She has become irrationally fearful for the safety and health of her other children to the extent of being unwilling to leave them for normal social engagement. In addition, she has been constantly bringing them to the doctor for the most minor of upsets, as she is constantly fearful of dire outcomes. Apart from these outward manifestations of mental illness, she, herself, suffers from very low mood and feelings of guilt and anger at what she perceived to be her own failure to have intervened and taken appropriate action during that terrible night to have obtained the appropriate response from the defendants in time to have saved Aisling's life. The fact that liability in respect of these events was not conceded by the defendants until late last year, shortly before the fatal accident proceedings came on for hearing, greatly aggravated her feelings in this regard.

9 9. It is quite clear that all of this gross alteration of the plaintiff's personality and lifestyle, and the complex of feelings that have dominated her life since 19 ^th February, 2006, are very different from the content of a normal grief reaction, and I am quite satisfied are to be attributed to the intense nervous shock suffered by the plaintiff, quite understandably and foreseeably, as a result of being present and witnessing the events that occurred that night.

10 10. I have no doubt that the nervous shock suffered by the plaintiff and the mental illness resulting from it have caused the plaintiff great suffering over the past five years, and in my view, the appropriate sum to compensate the plaintiff, by way of general damages for this is €75,000.

11 11. I accept the evidence of the two psychiatrists that the plaintiff can recover to a significant...