Lisa Sheehan v Bus Éireann/Irish Bus and Vincent Dower  IECA 28 - Kelly v Hennessy still the ‘touchstone’ for Nervous Shock Claims in Ireland
The Court of Appeal recently upheld the decision made by the High Court in Lisa Sheehan v Bus Éireann/Irish Bus and Vincent Dower, in which the High Court had made an award of €85,000 in general damages for negligently inflicted psychiatric injuries, finding that the plaintiff was the equivalent of a “primary victim”.
The decision has further clarified the position in respect of Nervous Shock cases in Ireland and has confirmed that the principles as set out by the Supreme Court in Kelly v Hennessy  2 IR 253 remain the relevant legal test for recovery in these types of claims.
By way of reminder, the relevant principles set out in Kelly v Hennessy are:
- Did the plaintiff suffer a recognisable psychiatric illness?
- Was the psychiatric illness shock induced?
- Was the nervous shock caused by the defendant’s negligence?
- Was the nervous shock sustained by reason of an actual or apprehended physical injury to the plaintiff, or a person other than the plaintiff?
- Did the defendant owe the plaintiff a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock?
In January 2017, the plaintiff was driving home when she came across an accident. The plaintiff did not witness the accident, but her vehicle was hit by some debris. The plaintiff saw a badly damaged car, which had hit a bus, and discovered what initially appeared to her to be the partially decapitated body of a child, but which in fact was the body of the deceased driver, who had been propelled into the rear of his vehicle by the impact of the collision.
The plaintiff called the emergency services and searched the area for any other victims. Following the incident, she suffered nightmares and flashbacks and was diagnosed with moderately severe Post Traumatic Stress Disorder after an initial stress reaction at the scene of the accident, together with a Depressive Adjustment Reaction. The Court heard that she gave up work in February 2019, and that whilst her psychiatrist was hopeful that she would ultimately make a full recovery, that was subject to a 25% chance of further depression or stress-related conditions.
It was not in dispute that the driver of the car’s negligence was the cause of the collision. The proceedings had been discontinued against the owners of the bus, Bus Éireann/Irish Bus. The plaintiff brought a claim for psychiatric injuries caused, on her account, as a consequence of witnessing the aftermath of the accident.
The defendants argued that the driver owed no relevant duty of care to the plaintiff because:
- The plaintiff was a “secondary victim” and did not conform to the criteria entitling a secondary victim to damages; and
- Where the primary victim suffers injury as a result of his own negligence, the psychiatric injury suffered by the plaintiff as a result of witnessing the defendant’s self-inflicted injury is not compensable in law as a matter of policy.
Court of Appeal:
Clarifying the position in respect of nervous shock cases in Ireland, the Court of Appeal held that:
- The primary/secondary classification developed by the English courts, and by extension, the associated control mechanisms, have not, at least to date, been adopted into Irish law. Mr Justice Noonan referred to the comments of Keane J when the matter came before the High Court, where Keane J had indicated that an inflexible adherence to the rigid primary/secondary victim distinction articulated in the leading English case of Alcock v Chief Constable of South Yorkshire Police  1 AC 310 has no role to play in Irish jurisprudence, and that the plaintiff was in fact a primary victim, so the control mechanisms had no application. Mr Justice Noonan agreed with the conclusions of the High Court and felt that even if one was to accept the primary/secondary classification, the plaintiff would be properly regarded as a primary victim. This was because her car was struck by flying debris from the accident, she was clearly within the area of risk of physical injury and thus properly regarded as a participant, or involved, in the accident making her injuries foreseeable.
- The imposition of liability is to be approached from a standpoint approved in both Glencar  1 I.R. 84 and Fletcher  1 IR 465 namely of reasonable foreseeability, proximity and the reasonableness of the imposition of a duty of care on the facts of the case.
- The second argument of the defendants was entirely predicated on the English High Court case of Greatorex v Greatorex  1 WLR 1970, in which it was held that where the primary victim suffered his injuries as a result of his own negligence, the requirements of policy dictated that the secondary victim (in that case the plaintiff’s father) who saw his son, the defendant, in a severely injured condition, could not recover for the psychiatric injury he sustained as a result. The Irish High Court found in Sheehan that this did not represent the law in Ireland and declined to follow this reasoning. Given that the court had already decided that a duty of care was owed to the plaintiff, the court held that it was unnecessary to determine the second issue raised by the defendant and in any event expressed “misgivings” about the decision of Greatorex, noting that even in England, the judgment has been doubted, for example by the Law Commission, which noted that there was no bar to recovery for physical injury in such circumstances.
- The plaintiff fulfilled the criteria as set out in Kelly v Hennessy (set out above).
The Court of Appeal upheld the decision in favour of the plaintiff, Mr Justice Maurice Collins finding: “None of the Irish authorities to which we were referred …………… appear to me to support the position of the Second Defendant. Furthermore, I cannot identify any policy considerations that might justify leaving Ms Sheehan uncompensated for the significant and foreseeable injury sustained by her as a direct and immediate result of the negligence of the Deceased”.
Crucially, Mr Justice Collins also found that the plaintiff was far from being a “mere bystander or spectator” in the circumstances of this particular case. He also put matters quite succinctly in respect of why the defendants’ second argument must not succeed: “Ms Sheehan was involved as a participant in the accident caused by the negligence of the Deceased and its immediate aftermath and in my view the Judge was correct to conclude that the Deceased owed a duty to Ms Sheehan not to cause her psychiatric injury. The fact that the fatal injuries suffered by the Deceased were caused by his own negligence is not a basis for excluding or restricting such duty here. Insofar as Greatorex may suggest the contrary (and as I have already observed, the Plaintiff in Greatorex was not a primary or immediate victim, in contrast to the position of Ms Sheehan) I would not follow it”.
Mr Justice Noonan noted the ‘significant challenges’ that the area of liability for purely psychiatric injury has presented the courts over the years and how the law has attempted to keep pace with rapid advances in technology where horrific events could be broadcast to worldwide audiences as they happen, or within seconds.
He concluded that the primary/secondary classification developed by the English courts, and by extension the associated control mechanisms, have not, at least to date, been adopted into the law of this jurisdiction. The imposition of liability in this case is to be approached from the standpoint, approved in both Glencar and Fletcher, of reasonable foreseeability, proximity and the reasonableness of the imposition of a duty of care on the facts of the case.
This decision is useful in providing some further clarify as to the approach of the Irish Courts to nervous shock claims. The Kelly v Hennessy principles remain the starting point for determining liability in a claim for negligently inflicted psychiatric injuries.
It also follows the recent decision of the Court of Appeal in Harford v ESB  IECA 112 where the Court was bound by the principles in Kelly v Hennessy in overturning the decision of the High Court, where it was found that the plaintiff had not established the 2nd and 4th elements of Kelly test.
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About the Authors
Claire is an associate solicitor in the Healthcare team at Hayes solicitors. She specialises in defending medical negligence actions against hospitals and individual healthcare practitioners. Claire is committed to providing healthcare professionals with advice to support them through the litigation process, and dealing with claims expeditiously.
Katie is a Solicitor in the Healthcare team at Hayes solicitors.
She specialises in the defence of medical and dental claims taken against both public hospitals and private clinicians. Prior to joining Hayes solicitors, Katie worked for four years in the area of insurance defence litigation with a particular focus on personal injury claims. She also trained in general practice with a particular focus on plaintiff personal injury claims.