Legal rights and access to medical records
Who do medical records belong to?
To the patient.
Do I need a reason to obtain a copy of my medical records?
No.
Who holds my medical records?
Your GP physically holds your GP records. However if you are the holder of a medical card, the HSE is the body legally responsible for your records. If you are a private patient with your GP, they are legally responsible for your records.
Your hospital notes and records are kept by the administrative body that manages the hospital. Most hospitals, public or private, will have a medical records department that will deal with all requests for medical records.
If your hospital is a public hospital, the HSE are the body responsible for your records, if your hospital is a private hospital, then that hospital is the body responsible for your records.
What legislation deals with access to medical records generally?
The Data Protection Act, 2018 and the GDPR apply to both public and private medical bodies and professionals.
The Freedom of Information Act 2014 applies only to public bodies such as the HSE, public hospitals and GP’s where the records relate to patients with medical cards.
The Data Protection Act 2018 and the GDPR do not apply where the patient has died. In such instances, the Freedom of Information Act 2014 applies.
How do I get a copy of my medical records?
You must write to your GP, HSE, health care provider or hospital seeking a copy of the records. Under the Data Protection Act, 2018 you will be making a subject access request (SAR) for the records.
If you are applying under the Freedom of Information Act 2014, you make the application under that legislation.
In all instances you will be expected to give your full name and address, your date of birth, the nature of the records you require and for what period, proof of your identity (passport or driving licence) and how you want the records to be copied to you i.e. in hard copy or electronic form.
Most GP’s and hospitals have a website which sets out in more detail what documentation is required to enable you to access your medical records.
Many have a pro forma consent form already prepared which can be downloaded and completed.
Do I have to pay for my records?
Normally, no fee is payable.
How long must I wait for the records?
If the request is under the Data Protection Act, 2018 then you can expect the records within one month. If the matter is complicated then an extension of a further two months can be given.
If the request is under the Freedom of Information Act 2014, you can expect a decision as to whether you are entitled to the records within 20 working days of the request albeit getting a copy of the actual records can take longer.
Can my request be refused or not fully granted?
Yes, under the Data Protection Act, 2018 where:
Yes, under the Freedom of Information Act 2014 where:
Do I have a right of appeal if my request is refused or not fully granted?
Yes, if the request has been made under the Data Protection Act, 2018 then you can appeal to the Data Protection Commission.
Yes, if the request has been made under the Freedom of Information Act, 2014, the appeal is to the Internal Reviewer named in the letter refusing the request.
This appeal must be made within 4 weeks and a decision given within 15 working days. A further appeal is to the Office of the Information Commissioner. Time limits apply.
How can I get my child’s records?
You will have to show that you are the parent or guardian of the child in question. The child’s consent may also be necessary even if the child is under the age of 18 if they have the capacity to consent.
The record keeper must have regard as to whether the disclosure of the records is in the best interests of the child.
Can I obtain the records of a dead relative?
Persons entitled to apply are:
What is the difference between the Data Protection Act 2018 and the Freedom of Information Act, 2014?
The key difference between these two laws is their scope and purpose. The Freedom of Information Acts are designed to give the public the right to access information held by public bodies, including health service providers.
It allows individuals to request access to information about themselves or another person, subject to certain exemptions.
On the other hand, the Data Protection Act 2018 is focused on protecting individuals' privacy rights and ensuring that personal data is processed fairly and lawfully.
This law gives individuals the right to access any personal data that an organization holds about them, including their medical records.
However, unlike the Freedom of Information Acts, the Data Protection Act 2018 only applies to personal data held by private organizations or public bodies acting in a commercial capacity.
In summary, while both the Freedom of Information Acts and Data Protection Act, 2018 can be used to request medical records in Ireland, the Freedom of Information Acts are focused on accessing information held by public bodies, while the Data Protection Act 2018 is focused on protecting individuals' privacy rights and ensuring that personal data is processed lawfully.
Unless you are applying for access to medical records for a deceased person, in our opinion it is more straightforward to apply for your records under the Data Protection Act, 2018 using a subject access request.
Can my solicitor obtain my medical records?
Yes. You will have to sign a written authority prepared by your solicitor to the health professional concerned that allows access to your records. You will normally also have to give copy photographic ID as well.
Will my solicitor have to pay for my records?
The same rules and fees that apply to you apply to your solicitor. Your solicitor is acting as your agent.
If there is a power of attorney, can my attorney access my medical records?
That depends on the nature of the power of attorney. If the power of attorney gives your attorney power to access and copy your medical records, then they will be disclosed to your attorney.
The health professional concerned will likely ask for sight of the power of attorney. The same rules that would have applied to you re such disclosure, will apply to your attorney.
What happens if my records are disclosed to someone without my authority?
Such unlawful disclosure will be in breach of the GDPR and the Data Protection Act, 2018. This is a serious matter and you can make a complaint to the Data Protection Commission.
You will also have a right of action for damages against the person or body who made the unlawful disclosure.
However, there are specific instances where it can be lawful to disclose records without your consent:
In some of these instances, records will be anonymized.
Who are the Kearney Law?
Kearney Law are a legal firm that only does personal injury law. We are passionate about our work and are easy to talk to.
Our commitment to our clients makes us excel in what we do. We are tech savvy and use software platforms to ensure your case is dealt with expeditiously and professionally.
We only do personal injury law and are experts at it.
For further assistance please ring us at 01 4853560 or email us on info@kearneylaw.ie or fill in our contact form
The content of this blog is provided for information purposes only and does not constitute legal or other advice. No solicitor/client relationship or duty of care or liability of any nature shall exist or arise between Kearney Law and you and Kearney Law refer you to the Disclaimer on its website.
In contentious business, a solicitor may not charge or calculate fees or other charges as a percentage or proportion of any award or settlement.
Orthopaedics and clinical negligence claims
March, 2023
What is orthopaedic medicine?
Orthopaedic medicine focuses on the care of the musculoskeletal system. This system consists of muscles, bones, joints, ligaments, and tendons.
There are two types of orthopaedists: surgical and nonsurgical. Orthopaedic surgeons perform surgical procedures, while nonsurgical orthopaedists include therapists, physiotherapists, nurse practitioners and rehabilitation specialists.
What medical conditions do orthopaedists treat?
In broad terms:
What is clinical negligence?
Clinical negligence occurs when a healthcare professional gives a patient substandard care and as a result, the patient sustains injuries they would otherwise not have sustained.
Healthcare professionals have a duty of care to all their patients to ensure they are treated properly and appropriately.
Where substandard care has been given it is normally either a failure to treat the patient properly for their medical condition or a failure to get proper and informed consent from a patient for their medical treatment.
Why is clinical negligence different from other types of negligence?
Clinical negligence involves healthcare professionals such as doctors, surgeons, nurses and other medically qualified personnel. Victims of clinical negligence by definition are already ill at the time inadequate care is given, compounding an already difficult situation.
Victims may be left not only with their original medical complaint but further injury caused by incompetent care.
Cases are often complex and the solicitors handling the action must have a knowledge of both law and medicine and the interaction between the two. This requires skill and experience from the solicitor.
How common are mistakes in orthopaedic surgery?
Statistics from the NHS in the UK (2021-22) show that orthopaedic surgery accounted for 12% of all claims of clinical negligence and 3% of all claims paid out.
These statistics show that between 2018 – 2022 there were 3991 cases of clinical negligence involving orthopaedic surgery.
What types of clinical negligence claims arise in orthopaedic surgery?
What are the consequences of clinical negligence in orthopaedic surgery?
This will depend on the nature of the surgery and the original orthopaedic complaint. Some patients may recover relatively quickly where the original complaint was not serious and the negligent act remedied quickly.
In other cases there may be life long difficulties with pain, suffering and disability.
In the most serious cases, patients’ ability to work have been severely curtailed and they have been unable to care for themselves with devastating consequences for them and their families’ physical, mental and economic well being.
What should I do if I think I have a claim for clinical negligence in orthopaedic surgery?
You should see your solicitor. They will take instructions from you about the circumstances of your treatment. They will then obtain all your relevant medical notes and records to ascertain precisely what treatment you were given.
After going through the records and ensuring their accuracy, they will instruct an expert physician with the relevant expertise in orthopaedic medicine to determine if the treatment given to you was negligent.
If the expert finds that the treatment given was below the standard you were entitled to expect they will advise you accordingly and you can begin an action for compensation against the healthcare professional who was responsible for your medical care.
How long do I have to make a claim?
Normally in personal injury law (but see below for clinical negligence matters), you have:
In clinical negligence cases, the time limit (what lawyers call the “limitation period”) of two years will normally start either from the date of the act of negligence or from the date the patient knew or ought to have known that the injury or harm was due to an act of negligence.
The date of knowledge can be years after the negligent act, for instance, if an operation was performed negligently say on a shoulder joint and a patient was unaware of this, it may be years before the patient’s symptoms progress such as to necessitate medical attention.
In such circumstances the patient could not have known that the original operation was performed negligently until the symptoms appeared and the time limit will therefore only run from the date of knowledge of such negligence – not when the operation was originally performed, which could be some years after the date of the original negligent act.
Time limits in clinical negligence matters can be complicated and you should seek legal advice immediately if you think you have a claim. Do not delay.
How is my compensation assessed?
We divide compensation into a number of headings:
How long will my case take?
Clinical negligence cases are complex and need careful legal work. Expert reports from doctors are necessary and depending on the nature and severity of the injury, rehabilitative/care consultants and accountants may be instructed and such reports can take some time to prepare.
Straightforward and smaller cases may be settled within a year or two. More complex cases will normally take 2-4 years to conclude.
Can I get an interim payment of compensation before my case is settled?
Yes. Interim payments can be made in personal injury cases where there is an immediate need for financial assistance. The value of any such payment is deducted from the final figure awarded in compensation.
Such payments are used in cases that can take some years to settle. They help families meet immediate financial demands and can pay for medical and other expert therapies as quickly as possible.
Do I have to make my application for compensation to the Injuries Board first?
No, clinical negligence claims are not under the jurisdiction of the Injuries Board.
Will my case to go to court?
The vast majority of cases that have a reasonable prospect of success are settled and do not go to hearing. This is the case even where court proceedings have been commenced.
How can Kearney Law help?
We appreciate that no amount of money can go anywhere near putting you back to the position you would have been in prior to the substandard clinical care.
What we can do is provide as much financial and other assistance as is possible to alleviate the burden of your loss.
We will ensure that you get the help you need now and into the future. Compensation helps pay for the medical treatment, rehabilitation and care you need, both in the short and long term.
We are passionate about our work. We are easy to talk to and will keep you fully informed about the progress of your case.
We are tech enabled and use software platforms to ensure your case is dealt with expeditiously and professionally. We are very experienced and have a team ready to deal with all aspects of your claim for clinical negligence.
We only do personal injury law and are experts at it.
For further assistance please ring us at 01 4853560 or email us on info@kearneylaw.ie or fill in our contact form
The content of this blog is provided for information purposes only and does not constitute legal or other advice. No solicitor/client relationship or duty of care or liability of any nature shall exist or arise between Kearney Law and you and Kearney Law refer you to the Disclaimer on its website.
In contentious business, a solicitor may not charge or calculate fees or other charges as a percentage or proportion of any award or settlement.
Asbestos related claims for compensation in Ireland
7th February, 2023
Diseases related to asbestos affect many thousands of people every year. Diagnosis of asbestos related diseases can occur many years after an initial exposure to it but this does not mean that you are not entitled to make a claim for compensation.
We have set out below some of the most frequent queries we hear regarding asbestos related claims.
What is asbestos?
It is a group of naturally occurring minerals made of microscopic fibres.
What was asbestos used for?
Asbestos has insulation and fire protection qualities and was used in many industries largely between 1950’s – 1980’s.
These industries were primarily based in construction, manufacturing and ship building and asbestos was often mixed with cement or other fabrics and mats and used in lagging material, cement products and paint.
Are there different types of asbestos?
Yes - there are 3 types of asbestos:
Why is asbestos so dangerous?
All asbestos becomes dangerous when released into the air. When asbestos fibres are breathed into our lungs or swallowed they can cause asbestos related diseases. Asbestos products are now largely banned.
What are asbestos related diseases?
There are a number of specific diseases related to asbestos exposure:
What are the legal obligations of an employer?
Employers are under a duty to their employees to provide a safe working environment. They must ensure that they protect you against health risks and do not expose you to dangerous substances which may adversely affect your health now and in the future.
They are under a duty to provide employees with personal protective equipment. Employers have to carry out risk assessments to determine the nature of any risks that employees are exposed to in the workplace.
There are now very specific legislative provisions relating to asbestos, its use and how it is removed.
What should I do if I believe I have an asbestos related disease?
You should immediately see a solicitor.
Before you do, you should prepare a statement setting out your employment history, where and when you think you were exposed to asbestos, when you began to develop symptoms and what medical treatment you have undergone (and where) since then.
Your solicitor will then advise you on who is likely to be liable for your asbestos related disease and what medical evidence will have to be obtained.
Your medical records will be a necessity before an expert in asbestos related disease is instructed to prepare a report.
I was exposed to asbestos many years ago but the disease is only evident now – can I still make a claim for compensation?
Yes. Normally in personal injury law, a claimant has two years from the date of an incident that led to the claim to bring a case (lawyers call this the limitation period).
In asbestos related disease claims the exposure to asbestos often takes place over a period of time and many years before disease becomes apparent.
In such cases, the two year limitation period begins from the date of diagnosis of the asbestos related disease (or potentially earlier if the connection between symptoms and asbestos exposure has been made) and not from the date of the original exposure.
If someone dies as a result of asbestos exposure then the two year period normally runs from the date of death.
Time limits and limitation periods can be difficult to assess in asbestos related disease claims. There may be exceptions to the rule that allow cases that appear “out of time” to proceed. The best advice is not to delay and seek legal advice immediately.
The employer I worked for has gone out of business/no longer exists. Can I still bring a compensation claim?
Yes, although it can be more difficult. All employers are required to carry employer liability insurance to cover this type of injury and if we can find the insurer of the now defunct company, they can still be pursued for compensation.
I worked in a building that had roofing with asbestos content and have now developed an asbestos related disease. Do I have a claim for compensation?
Yes, if you can show that your disease process was related to the asbestos in your workplace. Both the owner/occupier of the building and your employer could have a liability to you.
Some years ago, my husband worked in an industry that used asbestos and he would often come home covered in dust. I used to clean his work clothing. I have now developed an asbestos related disease. Can I bring a claim for compensation against my husband’s employers?
Yes. We call this secondary exposure and if you can prove the link then you should have a claim for compensation.
What compensation will I receive?
This will depend on the nature of your asbestos related disease and your financial loss. It will include:
Why Kearney Law?
We at Kearney Law can help you with a claim for compensation. We deal with claims for asbestos-related diseases and will advise you on your options promptly and professionally.
We only do personal injury law and are experts at it.
For further assistance please ring us at 01 4853560 or email us on info@kearneylaw.ie or fill in our contact form
The content of this blog is provided for information purposes only and does not constitute legal or other advice. No solicitor/client relationship or duty of care or liability of any nature shall exist or arise between Kearney Law and you and Kearney Law refer you to the Disclaimer on its website.
In contentious business, a solicitor may not charge or calculate fees or other charges as a percentage or proportion of any award or settlement.
January, 2023
Irish law
Cycling Accident Claims
There are more and more cyclists on the road. The Government are encouraging more people to use their bikes to and from work and there are many recreational and competitive cyclists on public roads.
The Cycle to Work scheme and bike hire have been success stories. It is inevitable that cyclists come into contact with other road users and as a consequence, accidents occur.
In a collision with a motor vehicle, cyclists inevitably come out worse. Cyclists are involved in less than 1% of road traffic accidents, yet make up over 14% of serious injuries sustained in collisions.
Cycling accidents are under reported to Gardai compared with road traffic accidents. We deal below with some of the more common questions arising from such accidents.
Where do most cycling accidents occur?
In descending order:
When do most accidents occur?
ie when the roads tend to be busy.
What are a cyclist’s legal obligations?
You must keep your bike in good, working order. You must cycle with due consideration for other road users and be in a fit state to control your bicycle.
You must have lights front and back with reflectors if you are travelling on a public road. You must use your lights during lighting up time. You must have working brakes and a bell.
You must obey the road traffic legislation and follow the rules of the road. You cannot cycle in a pedestrian area or street. You cannot cycle on a pavement unless you are entering or leaving a property.
If you decide to push your bike on a pavement during lighting up time, it still must have lights lit front and back.
You are not obliged to use cycle lanes unless it is in a pedestrian area and where the cycle lane is a contra flow cycle lane, you can only cycle in the contra flow direction.
There is no legal obligation on a cyclist to wear a helmet or reflective clothing but good sense dictates you should. See and be seen.
Failure to do so may affect the amount of compensation awarded even in cases where the accident was not your fault.
Who is responsible for an accident?
Everyone using the road must do so with all due care and skill and with consideration for other road users. Statistically in accidents involving cyclists and motor vehicles, the fault lies with drivers of the motor vehicles over 70% of the time.
I was cycling along a road and a car passed too close to me, brushing me/hitting me or causing me to fall off by bike. Can I bring a claim for compensation?
Yes. A car driver has to drive competently and carefully with consideration for other users of the road, including cyclists. In 2019 the law was changed making it an offence to dangerously pass a cyclist.
Relatively few prosecutions/fixed penalty notices have followed this change. It is recommended that a driver should leave 1.5 metres between them and a cyclist when overtaking where road speeds are 50km/h and in areas with lower speed limits, drivers should allow 1 metre.
If a car drives too close to you and hits you then you will have a claim against the driver as they would have been negligent in the driving, management and control of their motor vehicle.
If a vehicle does not hit you but drives so close to you that you become unstable and fall off your bike, then again you will have a claim against the driver for compensation.
I was turning left at a junction and the driver of the motor vehicle did not see me on the inside, resulting in a collision in which I sustained injury. Can I bring a claim for compensation?
Yes. This is a major problem at junctions especially in towns and cities where large commercial vehicles are on the roads.
Such vehicles often have a blind spot and drivers fail to check their wing mirrors to see if a cyclist is on their inside.
In London some lorries have been fitted with sensors, alarm soundings and better mirrors to warn drivers that cyclists are on their inside when turning left.
Injuries sustained in these accidents are often very serious and can be fatal. All drivers need to be aware of the dangers posed to cyclists.
A vehicle hit me at traffic lights? Do I have a claim?
Yes. In the High Court in October, 2022 a woman was awarded €87000 for injuries sustained when she was stopped at traffic lights in Dublin and was thrown from her bicycle after being hit by a van.
I was cycling down the road and someone opened a car door into my path causing a collision. Do I have a claim?
Yes. Car users are expected to check the road is clear before they open their door into the road. If they fail to do so, and cause an accident then they are liable for the injuries sustained in the accident.
In a Circuit Court case in 2022, a 32 year old soldier was catapulted from his bicycle when a van driver opened his door into his path.
The judge awarded the cyclist €30000 plus his legal costs and said, “People are not entitled to suddenly open doors without first checking that all is clear.”
A car hit me when I was on my bike. The accident was not my fault. However I was not wearing a helmet. Does this affect my case?
Yes. You will still have a case for compensation but there is likely to be a reduction in the value of the claim if your failure to wear a helmet contributed to your injuries.
In the Circuit Court in 2023 a cyclist lost control of her bike when a truck veered to its left brushing against her shoulder. The cyclist suffered a concussion and soft tissue injuries.
The judge awarded her €20000 but reduced the award by €4000 (20%) as she had not been wearing a helmet and that failure contributed to her injuries.
A car hit me when I was cycling but did not stop and as a result I could not find out who the driver was. I sustained injuries. Can I claim compensation?
Yes. In cases where you have sustained injuries caused by the driver of a motor vehicle which does not stop or is uninsured, you may bring a claim for compensation for your injuries and other financial loss against the Motor Insurers Bureau of Ireland (MIBI).
The MIBI act as if they were the insurer of the untraced/uninsured vehicle.
I was out cycling and hit a pothole on the road and fell off sustaining injuries. Do I have a claim for compensation against the local authority?
That depends. Legal liability in such circumstances is divided into 2 categories – nonfeasance (a failure to repair a road) and misfeasance (the negligent repair of a road).
You cannot recover compensation for nonfeasance but you can for misfeasance so if the accident was due to the council’s failure to repair the road (nonfeasance) then there is no liability.
If however the council did attempt to repair the road but did it negligently then they may be liable. These are complex areas of law and you should take legal advice.
Can I overtake a vehicle on the inside?
Yes – if the vehicles to the right are stationary or moving more slowly than you. Be careful if you do. However you cannot overtake on the inside if the vehicle being overtaken is:
Can I cycle beside another cyclist?
Yes but not when overtaking or obstructing the road.
What should I do if I have an accident?
What is included in my compensation claim?
You will be compensated for your personal injuries and all other loss and damage.
This will include any claim for loss of earnings, reimbursement of all hospital and medical fees, the damage to your bike and clothing and any other expenses or loss incurred as a result of the accident.
It is our job to ensure that you recover all loss you sustained.
How long do I have to take a claim?
The normal limitation period for taking legal action is 2 years less one day. However there are exceptions to this rule (a) if a child sustains injury, a claim can be made any time before the child reaches the age of 18.
Once a child reaches the age of 18, they have a further two years to make a claim themselves until they reach the age of 20 or (b) if the person who sustains the injury does not have mental capacity then there are no time limits.
It is important therefore that if you wish to take action, you consult a solicitor at the earliest opportunity. Do not wait.
Once instructed your solicitor will normally obtain medical evidence to show that nature of your injury and the likely treatment and recovery period from same.
It is on the basis of this medical evidence that the value of your case can be assessed. Your solicitor will also obtain all the evidence required to compensate you for any other financial loss.
Why instruct Kearney Law?
We at Kearney Law can help you with a claim for compensation. We deal with cycling claims and will advise you promptly and professionally. We only do personal injury law and are experts at it.
We want to get you back in the saddle.
For further assistance please ring us at 01 4853560 or email us on info@kearneylaw.ie or fill in our contact form at https://kearneylaw.ie/contact-us/
The content of this blog is provided for information purposes only and does not constitute legal or other advice. No solicitor/client relationship or duty of care or liability of any nature shall exist or arise between Kearney Law and you and Kearney Law refer you to the Disclaimer on its website.
In contentious business, a solicitor may not charge or calculate fees or other charges as a percentage or proportion of any award or settlement.
Compensation for nervous shock and psychological injury
January, 2023
When someone is injured following a road traffic accident, accident at work or due to the negligence of another person (such as in a clinical negligence claim), they may suffer both a physical injury and a psychological one.
The victim is entitled to separate compensation for each type of injury. Psychological injuries include post traumatic stress disorder, depression, anxiety and panic attacks.
In order to make a successful claim for psychological injury, a victim must show:
1. They suffered from a recognisable psychiatric illness. Mental distress, emotional upset or shock falling short of a recognisable psychiatric illness is not compensatable.
You do not have to suffer a physical injury that in turn leads to the psychological injury. You may make a claim for compensation for psychological injury alone as long as it is a recognised psychiatric illness.
In December, 2022 a woman in County Longford was awarded damages after she developed post traumatic stress disorder following a mistake by a pharmacist. She had just had a child and was given what should have been anti clotting medicine.
Some of the medication vials she had been given appeared to have been already used and she was not aware of this. She subsequently developed a fever and was very worried about the risk of contracting Hepatitis B from the injections.
Thankfully she did not contract the disease but she could not breastfeed or bond with her baby initially as a result of the incident.
She claimed a failure to deliver the standard of care she was legitimately and reasonably entitled to expect and that she had suffered emotionally and psychologically. She was awarded over €39000 by the Court.
2. Such recognisable psychiatric illness was shock induced. You must show that your psychiatric injury was due to the accident or incident that led to it.
The fact that one person may in similar circumstances not have developed a psychiatric illness is irrelevant. Law takes a victim as it finds him or her – as long as the illness arises from the negligent event, it is potentially compensatable.
In 2021 an award of €372000 was made at the High Court in respect of a woman who sustained injuries following a road traffic accident in Dublin in 2011.
Her physical injuries were relatively modest but she suffered a severe psychological reaction to the accident, developing post traumatic stress disorder together with fibromyalgia and irritable bowel syndrome.
She was unable to work for some years after the accident. She was awarded €170000 for her pain and suffering with the remainder of the award to cover her loss of earnings and other financial loss.
3. That such shock was caused by another person’s negligence.
You must show (as in all accidents which attract compensation) that the person who caused the injury owed a duty of care to you and that they breached that duty of care and as a result you sustained your injury be it physical, mental or both.
For instance if you were in a road traffic accident that was not your fault, the road user that caused the accident would be in breach of their duty of care to you and would be liable to you in damages for any injury, physical and/or mental you sustained.
Similarly if you were hurt in an accident at work, your employer would owe a duty of care to you and if their negligence caused you an injury, physical and/or mental, then you would be entitled to make a claim against them.
In a case before the Circuit Court in 2000 a woman employee suffered a psychiatric illness when she switched on a machine without realising there was a workman inside the machine.
Her illness was due to what had happened to her and she sued her employer for damages.
The Judge held that the employer was in breach of their duty of care to her in failing to take care of the safety of employees and that the harm suffered by the employee was reasonably foreseeable.
She was awarded £12000 for pain and suffering, £5000 for future pain and suffering and £1700 for her financial loss.
4. That such shock must have been by reason of actual or apprehended physical injury.
In a case in 1984, a woman recovered damages for nervous shock sustained when immediately after an accident she saw the appalling injuries sustained by her husband in it.
She was not involved in the accident and saw the injuries at the hospital treating her husband.
The Court held that the person who caused the accident owed a duty of care to those, although not present at the scene of the accident, are at risk of suffering psychiatric injury by personally perceiving the direct and immediate aftermath of the accident in which a person with whom they are in a close or intimate relationship with, is negligently injured or killed.
5. That the person who caused your injury owed you a duty of care not to cause you a reasonably foreseeable injury in the form of nervous shock. In most cases this is straightforward.
A car driver owes other road users a duty of care to drive safely, an employer has a duty of care to workers to ensure that their workplace is safe to work in and a doctor has a duty of care to his patients to carry out his medical treatment with all the due care and skill that would be expected of a competent doctor.
If, in any of these cases, you sustain an injury due to breach of this duty then compensation is payable. Sometimes however unusual cases arise.
In the case of Lisa Sheehan v Bus Éireann/Irish Bus and Vincent Dower Ms Sheehan came across the scene of a fatal accident involving a car and bus.
Her car was struck by debris from the accident and she got out of the car as she could not see what had happened.
She discovered the body of the dead driver and contacted the emergency services and tried to see if there were other victims of the crash.
She suffered psychological injuries as a result of what she saw and she took action for compensation against the persons responsible for the crash. She was awarded compensation of €87238 in 2020.
The defendant insurance company attempted to argue that she was not entitled to compensation as the psychological injuries she sustained were not foreseeable and too remote.
She had not been involved in the actual accident itself. The court rejected their argument at first instance and on appeal her award of compensation was upheld.
Unlike a physical injury, psychological injuries might not be readily apparent immediately after an accident. It may take time before you are aware there is a problem.
If you feel that you have developed a psychological problem it is important that you seek medical assistance as soon as possible.
The earlier you are diagnosed, the earlier you can be treated and as in all medical matters, early treatment can only help in a speedier, more successful recovery.
The normal limitation period for taking legal action is 2 years less one day. However there are exceptions to this rule (a) if a child sustains injury, a claim can be made any time before the child reaches the age of 18.
Once a child reaches the age of 18, they have a further two years to make a claim themselves until they reach the age of 20 or (b) if the person who sustains the injury does not have mental capacity then there are no time limits.
Once instructed your solicitor will normally obtain medical evidence to show that nature of your injury and the likely treatment and recovery period from same.
It is on the basis of this medical evidence that the value of your case can be assessed.
We at Kearney Law can help you with a claim for compensation. For further assistance please ring us at 01 4853560 or email us on info@kearneylaw.ie or fill in our contact form at https://kearneylaw.ie/contact-us/
The content of this blog is provided for information purposes only and does not constitute legal or other advice. No solicitor/client relationship or duty of care or liability of any nature shall exist or arise between Kearney Law and you and Kearney Law refer you to the Disclaimer on its website.
In contentious business, a solicitor may not charge or calculate fees or other charges as a percentage or proportion of any award or settlement.
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Kearney Law handles only personal injury and clinical negligence claims.
We act for clients across Ireland, including Dublin, Cork, Galway, Limerick, Waterford and Letterkenny. See all the areas we cover.
Contact us to talk to a solicitor about your claim, or request a case review.
Email: info@kearneylaw.ie
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Friday 9am – 5pm
