Update on Nervous Shock Claims: Primary and Secondary Victims- An Irish Perspective
Locations
The case dealt with two central issues:-
1. The nature and scope of the duty of care; and
2. Whether the law recognises a right of recovery where the primary victim is the wrongdoer rather than the blameless third party.
Case Facts
In January 2017, the Plaintiff Lisa Sheehan, a 36 year old hairdresser from Banteer, Co. Cork was driving home from work when she came upon the scene of a fatal accident involving a car and a bus. Although she did not actually see the accident take place, some debris from the collision hit her vehicle causing her to stop. When she got out of her vehicle to investigate, she discovered a partially decapitated body which she initially thought was a child. It later transpired that this was the deceased driver of the car. She telephoned the emergency services and searched the surrounding area for further victims.
The Plaintiff claimed that she developed PTSD as a result of what she witnessed that night. She suffered a panic attack 3 days after the accident and attended her GP. She took periods of time off work due to anxiety, continued to suffer flashbacks and nightmares and ultimately left her job as a hairdresser in February 2019.
A. Duty of care
In the High Court, Mr Justice Keane considered whether the Defendants owed the Plaintiff a duty of care. He considered the five steps cited in the leading Irish authority on negligently inflicted psychiatric injuries, Kelly v Hennessy [2]
These are:
- Did the plaintiff suffer a recognisable psychiatric illness?
- Was the psychiatric illness shock induced?
- Was the injury caused by the defendant’s negligence?
- Was there an actual or, in this case, an apprehended physical injury?
- Did the defendant owe the plaintiff a duty of care not to cause the plaintiff a reasonably foreseeable injury in the form of psychiatric illness?
The Defendants argued that the Plaintiff's psychiatric injuries did not give rise to any cause of action recognised by the law and that they did not owe her a duty of care on the basis that she was a 'secondary victim' to the accident. They sought to rely on the principles set out in the English case law of Alcock v Chief Constable of South Yorkshire Police[3] which distinguished between primary and secondary victims. Mr Justice Keane acknowledged that this type of categorisation of victims was not applied by the Irish courts and that the law on primary/secondary victims in nervous shock was far from settled. Ultimately, he was satisfied that the Plaintiff was a primary victim on the basis that her car had been struck by debris from the crash and on the basis of the Plaintiff's role as a rescuer.
B. Right of Recovery
As a parallel argument, the Defendants also argued that Ms Sheehan’s claim must fail because, as a matter of policy, there is no liability in negligence where the primary victim was the negligent defendant and where the shock to the plaintiff arose from witnessing the defendant’s self inflicted injury. Mr Justice Keane felt that this position was contrary to the Irish Constitution and would be capable of causing unfairness and injustice in our legal system.
He held that the Defendants were liable for Ms Sheehan’s psychiatric injuries, suffered as a result of witnessing the defendant driver's own injuries and awarded the Plaintiff general damages in the sum of €85,000.
Conclusion
This judgment is significant as it affirms the importance in nervous shock cases of satisfying the criteria set out in the Kelly case. It is clear that the Irish courts have adopted a more flexible approach to the categorisation of 'Primary' and 'Secondary' victims than that of the English courts. Parties should bear in mind that the individual facts of each case will be taken into account in considering whether a 'duty of care' is owed and the Plaintiff's 'right of recovery'.
A copy of the decision can be found here.