Mullaly v Bus Éireann

• Jurisdiction: Ireland
• Court: High Court
• Judge: MRS JUSTICE DENHAM
• Judgment Date: 01 January 1992
• Neutral Citation: 1992 WJSC-HC 3877
• Docket Number: No. 3527P/1989
• Date: 01 January 1992

MULLALLY v. BUS EIREANN

MAUREEN MULLALLY:

Plaintiff

BUS EIREANN AND ANOR:

Defendant

1992 WJSC-HC 3877

No. 3527P/1989

THE HIGH COURT

Synopsis:

ACTION

Cause

Damage - Remoteness - Foreseeability - Wife - Shock - Traffic accident - Personal injuries - Husband and sons injured - V Gruesome injuries - Traumatic experience of wife - Personality change - Death of one son - Post-traumatic stress disorder - Injuries caused by defendant's negligence - Whether nervous shock of plaintiff wife foreseeable result of negligence - Whether wife entitled to damages - (1989/3527 P - Denham J. - 13/6/91) - [1992] ILRM 722.

|Mullaly v. Bus Eireann|

DAMAGES

Assessment

Shock - Accident - Personal injuries - Husband and sons - Plaintiff wife - Post-traumatic stress disorder - Traffic accident - Gruesome injuries of husband and sons - Traumatic experience of plaintiff - Personality change - Death of one son - Physical injuries caused by defendant's negligence - Remoteness of plaintiff's damage - Whether nervous shock of plaintiff wife foreseeable result of negligence - Whether wife entitled to damages - (1989/3527 P - Denham J. - 13/6/91) - [1992] ILRM 722.

|Mullally v. Bus Eireann|

NEGLIGENCE

Damage

Remoteness - Defendant - Liability - Foresight - Wife - Shock - Traffic accident - Personal injuries - Husband and sons injured - Gruesome injuries - Traumatic experience of wife - Personality change - Death of one son - Post-traumatic stress disorder - Injuries caused by defendant's negligence - Whether nervous shock of plaintiff wife foreseeable result of negligence - Whether wife entitled to damages - (1989/3527 P - Denham J. - 13/6/91) - [1992] ILRM 722.

|Mullally v. Bus Eireann|

Citations:

CIVIL LIABILITY ACT 1961

BYRNE V SOUTHERN & WESTERN RAILWAY CO OF IRELAND UNREP COURT OF APPEAL FEB 1884

BELL V GREAT NORTHERN RAILWAY CO 26 LR (IR) 428

MCLOUGHLIN V O'BRIAN & ORS 1982 2 AER 298

MCMAHON & BINCHY, LAW OF TORTS 2ED P306–307

KEEGAN & LYSAGHT, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

1 ACTION HEARD BEFORE MRS JUSTICE DENHAM IN ENNIS ON JUNE 13, 1991

TRANSCRIPT OF JUDGEMENT.

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes in the above named judgement.

3 Doyle Court Reporters,

4 2 Arran Quay,

5 Dublin 7.

6 Telephone: 722833

7 (After Hours): 2862097

COPYRIGHT

8 Transcripts are the work of the shorthand writer and they may not be photo-copied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of the shorthand writer.

APPEARANCES

For Plaintiff:

MR. GLEESON, S.C.

MR. GALLAGHER, S.C.

MR. MICHAEL McMAHON.

Instructed by:

IGNATIUS M. HOULIHAN & SON,

Solicitors,

9/11 Bindon Street,

Ennis,

Co. Clare.

For Defendant:

MR. P. McCARTAN, S.C.

MR. L. GAYNOR, S.C.

MR. M. O'SHEA.

Instructed by:

MICHAEL CARROLL,

Legal Department,

C.I.E.

Heuston Station,

Dublin 8.

MRS. JUSTICE DENHAM GAVE JUDGEMENT AS FOLLOWS:

9 This is an assessment of damages. The plaintiff is claiming damages for nervous shock suffered by the plaintiff owing to the negligence and the breach of duty, including statutory duty of the defendants, jointly and severally.

10 On Sunday the 26th of April 1987 the plaintiff drove her husband, Francis, and her three sons to the bus. Her husband had an interest in soccer and was manager of Pike Rovers first team. The whole family were very involved in the club. On this particular day the plaintiff's husband and her two eldest boys, Francis Junior and Tom, were to go on the bus to a match in Midleton but when the family got to the bus Paul kicked up a racket and wanted to go too. Because it was a C.I.E. bus, Mr. and Mrs. Mullally discussed the situation and it was agreed Paul could go too. The plaintiff's four sons were Francis, born on the 29th of October 1975, Thomas, born on the 16th of August 1977, Paul, born on the 25th of February 1982 and Gary, born on the 23rd of February 1985.

11 After delivering her husband and three sons to the bus the plaintiff went home with Gary. It was then agreed that she and her brother, Thomas Fitzgerald who was home on leave from New York, would take her mother out for a trip in the car. Mrs. Mullally arranged that Gary be minded by a baby-sitter whom he knew. The plaintiff, her brother and mother went on a trip to Thurles. It was the first time the plaintiff had taken a trip away from all her four sons.

12 That evening, at about 10.30 p.m., when she was still in Thurles, Mr. Fitzgerald got a message that there were police officers at the front of the establishment who wanted to see him. He was confronted by a number of police officers who told him that there had been an accident involving the family and that he, his mother and sister should go back to Limerick as soon as possible. He got a telephone call from his sister-in-law, Helen Fitzgerald, she stated that he should come home right away, that there had been an accident and Francis and the boys were involved and that it was bad. He was in a state of shock. The plaintiff looked out of the room that she was in and saw him crying. She asked what was wrong. No one could tell her. People were awkward, they were silent. She got a telephone directory and rang the Regional Hospital in Limerick and heard that Francis Junior was there and was very bad and she was asked to get there straight away. They had no idea whatsoever where Paul was. She rang Barringtons Hospital and she was told her husband was critically ill, was dying, and that she should go there as fast as possible. Tom was also there. The plaintiff wanted to drive herself but her family and friends would not let her. Her brother, Tom, was too distraught to drive. Eugene O'Dwyer, a friend, then drove her to Limerick. There was a dense fog and the trip was difficult. The plaintiff was very distressed and agitated and on two or three occasions Mr. O'Dwyer stopped the car to enable her to get out and get sick at the side of the road. When they got to Limerick it was decided first to go to her home. They arrived in Limerick at about 1. 30 or 2 a.m.. They found a grave situation there. They were told that Paul and Francis were in the Regional Hospital and Tom was in Barringtons. Mrs. Mullally and her brother Tom were then driven by Mr. O'Dwyer to the Regional Hospital.

13 As a result of the serious bus accident in which the plaintiff's husband and children had been involved, the hospital looked like a hospital out of a war film, like a field hospital. There were bodies everywhere, people moaning and groaning and many distressed relatives milling around. When the plaintiff arrived at the hospital her relatives were saying the rosary. At the Regional Hospital she was met by her sister, Annette Fitzgough, who had gone previously to find out about her nephews and she brought the plaintiff to see Paul immediately who was in the I.C.U.. Her brother Tom also accompanied her. Her brother Bill had fainted previously when he saw Paul.

14 Paul presented a very distressing sight in the I.C.U.. His head was shaved and bandaged, there was blood oozing from his head wounds and there were tubes in his mouth and tubes attached to both arms and from his nose. He looked terrible. His eyes were flickering and his limbs were splintered. He looked dead. He was not in fact dead and there was talk of air-lifting him to Dublin but the fog posed a problem. They did not have the facilities to deal with Paul's condition in the Regional Hospital. The alternatives for getting the care for Paul were discussed. The plaintiff repeatedly said "He is dying, he is dead". She became very aggressive and angry with people and she fought with the medical personnel.

15 The plaintiff, her brother and sister then went walking through the hospital looking for Francis Junior. Because of the emergency situation in the hospital there was no administration of the patients and it was necessary to go through the wards looking at the victims of this accident to find Francis junior. There was confusion everywhere, there were other people looking for their relatives. The plaintiff and her sister passed through wards looking for Francis junior. It looked like a battle field. There were many casualties. They did not recognise Francis junior as they walked a long the wards. He was beyond recognition. The plaintiff passed him and then he said "Mam, this is me". His face was swollen, his eyes were slits and his head looked like a balloon. He had a compound fracture of his nose, cuts over his face. His teeth were very prominent. His face was extremely badly injured. Initially the plaintiff was screaming his name. She stayed with him for some time. His injuries could not be established. The plaintiff didn't know if there was brain injury. It was not possible to determine the precise injuries he had suffered. The hospital was very busy dealing with all the injured. Apart from some incidents, the plaintiff then functioned mechanically. She did not want to let the children see her cry. Francis junior asked her how Paul was and the plaintiff said he was okay. The plaintiff then went with her sister to Barringtons Hospital.

16 When they arrived they were told her husband had been anointed and they were told to be prepared because the situation did not look good. They were told to pray. The scene at this hospital was not as bad as it had been in the Regional. More hours had elapsed since the accident, things were more under control. However, Mr. Mullally presented a very distressing sight. He was gashed everywhere, his condition was very bad, he was semi-conscious. When he came around the plaintiff tried to talk to him. He kept saying he was "Sorry, sorry, sorry". He asked how the children were and the plaintiff told him all the children were fine. He was obviously very ill and fighting for his...