Duty of Care for negligently inflicted psychiatric injuries

Generally, a duty of care arises where one individual or a group undertakes an act (or omits to do a certain act) and that act could reasonably harm another, either physically, mentally, or economically. The main function of the principle is to ensure a balance is struck between getting justice for a person injured by a perceived wrong; and the avoidance of over burdening the wrongdoer, thereby in turn avoiding potentially significant cost consequences for society as a whole.

Establishing a duty of care owed by a wrongdoer who caused an accident in which another party was directly injured is generally straightforward. A different matter entirely is establishing a duty of care was owed by the wrongdoer for injuries of a purely psychiatric nature to a party who was not immediately involved in the accident. In the context of an accident these other parties would include witnesses, bystanders and rescuers and compensation claims taken by them for negligently inflicted psychiatric injuries are generally referred to as ‘nervous shock’ cases.

Nervous shock cases

Although most common law jurisdictions, particularly the UK, have been reluctant to impose a duty of care in nervous shock cases, the Irish courts have been less so. The UK have preferred a system of categorising claimants into primary and secondary victims, in addition to establishing certain criteria to prove a duty was owed to a rescuer.  This approach has not been without its criticism and Irish courts have ensured not to expressly adopt this type of classification of claimants.  However, it is likely to have informed the current Irish position to some extent.

A recent High Court judgement in Sheehan v Bus Eireann/Irish Bus & Anor ([2020] IEHC 160) may represent a significant departure in this jurisdiction from the approach of categorising claimants in order to establish whether they were owed a duty of care for negligently inflicted psychiatric injuries.

In Sheehan, the Plaintiff came upon an accident between a car and a bus. It was dark and while the Plaintiff did not see the actual impact she was close enough for debris from the accident to hit her car, causing her to brake and bring her car to a stop near the collision. She got out to assist the car driver, a stranger to her, who had unfortunately passed away. As she got to the car she saw his badly disfigured and partly decapitated body in the back seat. Indeed she mistakenly believed it was the body of a child on initial viewing which distressed her greatly. She called the emergency services and spent a short period of time searching the dark roadway around the car to see if any other bodies had been thrown from the car. She spoke briefly to the bus driver whose face was bloodied from the impact.

The Plaintiff suffered very significant distress after this accident and she was diagnosed with Post traumatic Stress Disorder (PTSD). A claim for compensation was taken by her against the motor insurance policies of both the deceased car driver and the bus company. Following investigations the insurance company for the car driver admitted their insured caused the accident.  The car drivers insurance company took over defence of the matter for both defendants. When the matter came before the court much of the medical evidence was admitted on agreement and there was no dispute the Plaintiff had suffered psychiatric injuries as a result of witnessing the injuries to the deceased car driver.

The Irish position

In a very detailed judgement Justice David Keane noted the main issue for determination was whether the Plaintiff was owed a duty of care based on the facts of the accident.  Keane J noted that the test in Ireland for a successful action for damages in nervous shock cases was the five part test of Hamilton CJ in the Supreme Court decision of Kelly v Hennessy ([1995] 3 IR 253), which requires proof of the following:

  • that the plaintiff suffered a recognisable psychiatric illness;
  • that the psychiatric illness was shock induced;
  • that the shock (and, hence, the consequent psychiatric illness) were caused by the negligence of the defendant;
  • that the shock was sustained by reason of actual or apprehended physical injury to the plaintiff or another person; and
  • that the defendant owed the plaintiff a duty of care not to cause the plaintiff a reasonably foreseeable injury in the form of psychiatric illness.

On the facts before the Court, Keane J noted part (v) of this test was the only issue to be determined. Indeed the Judge referenced the decision in Glencar Exploration plc v Mayo County Council (No. 2) ([2002] 1 IR 84) which requires a Court to consider whether imposition of a duty of care on an alleged wrongdoer was just and reasonable, and in doing so, the Court should take account of any public policy considerations that may dictate otherwise.

In defending the claim the Defendants argued no duty of care was owed to the Plaintiff as she was a “secondary victim”, in circumstances where she did not directly see the accident occur and had no connection to the injured party. Additionally, while conceded by them that the Plaintiff was a rescuer, the Defendants argued she had not been exposed to a foreseeable physical injury in giving assistance after the accident, and so no duty of care extended to her within that category of victim. Both of these arguments were based to a large degree on the established position of the UK courts in the area.

Categories of victims

In determining duty of care in nervous shock cases, much of the discussion by the House of Lords in the UK arose from the wide variety of such cases in the aftermath of the Hillsborough stadium disaster in 1989. These cases involved purely psychiatric injuries suffered by a range of people from police and supports who acted as rescuers in the immediate aftermath of the incident to family members near the ground or who had watched the disaster unfold from home on television.

The House of Lords in the UK adopted a restrictive approach of distinguishing between “primary victims“, those directly involved in the accident, and “secondary victims“, those who may witness an accident or arrive to the accident scene thereafter, which would include rescuers.  For a secondary victim to successfully seek damages for purely psychiatric illness they would need to establish: (i) that they had a close tie of love and affection with the person killed, injured or imperilled; (ii) that they were close to the incident in time and space (geographically); and (iii) that they directly witnessed the incident rather than, for example, hearing about it from a third person.

In terms of rescuers the House of Lords, while accepting the established principle that those who attempt rescue are owed a duty of care by those who create dangerous situations in which it is foreseeable rescuers may intervene, they said for purely psychiatric injuries a claimant would have to show they exposed themselves to a foreseeable physical injury in giving assistance at or after an accident or disaster. This prevented many such claimants from the Hillsborough Disaster from succeeding in their compensation claims, including police and members of the public who arrived upon the scene to offer assistance.

Application of the law in Sheehan 

In Sheehan, Keane J asserted that the Irish Courts had never adopted this approach of classifying claimants, and indeed he cited with approval an alternative approach put forward in Charlesworth & Percy on Negligence (13th edition, 2014) to move away from such a “rigid” need to classify all such claimants as primary and secondary, and instead identify deserving categories for recovery independently of such a distinction. Specifically they said nervous shock cases involving any type of claimant, such as rescuers, should “be considered on their particular merits”.

In any case Keane J felt that if such a categorisation of the claimant was required in Sheehan, which he expressly stated it wasn’t, he said he would view the Plaintiff as a primary victim, as she was in the area of risk of foreseeable physical injury and, as a motorist whose vehicle was struck by flying debris, he was satisfied she could be classed as a participant in the accident.

Similarly on the question of the Plaintiff as a rescuer, Keane J noted that in this jurisdiction no such threshold requirement existed for her to satisfy the Court that she objectively exposed herself to an actual danger or perceived danger. Irrespective of this the Judge stated on the facts he felt there would not be an issue in showing an exposure to danger based on what he described as her “selfless and civic-spirited actions” in attempting to assist the driver of the car and searching the surrounding area of the dark roadway for any other victims prior to emergency services attending the accident scene. He stated an “obvious injustice” would occur to the Plaintiff if she was barred recovery having provided significant assistance to an accident victim, on the basis she was not in immediate physical danger, but nonetheless suffered psychiatric injury, such as PTSD, as a result of that experience.

Accordingly Keane J rejected the Defendants arguments and held the deceased driver did owe the Plaintiff, as a participant in the accident, a duty of care not to cause her a reasonably foreseeable injury in the form of psychiatric illness. Keane J further held it was just and reasonable to impose this duty on the defendant in the circumstances, and he said he could identify no public policy considerations that dictated otherwise. The Plaintiff was awarded damages of €85,000 for pain and suffering to date and into the future.

Impact of the decision

In recent decades the Irish Courts have adopted an approach of only taking modest incremental steps when determining novel cases that may extend the duty of care of a negligent wrongdoer to an injured party. While the Irish position in determining duty of care in nervous shock has not been as restrictive as other Common Law jurisdictions, it has certainly been cautious with public policy considerations often being cited as a reason not to extend the duty of care in nervous shock cases.

Indeed Keane J addressed a public policy concern identified by the House of Lords of situations where a curious spectator who assisted in a peripheral way following an accident may recover for any associated psychiatric injuries suffered but a family member of a seriously injured or deceased victim could not recover. The Judge said this concern would be allayed by Courts properly characterising such a person as a bystander or spectator as opposed to a rescuer.

One of the most significant aspects of this judgement is how the circumstances in Sheehan, while not common, certainly would not be considered novel. Unfortunately serious road traffic accidents resulting in catastrophic injury or death occur week on week in Ireland.

Human instinct and civic impulse often compel people to give assistance to injured parties in accident scenarios. Where a person acts to a material degree on that impulse in good faith and suffers a psychiatric injury as a result, in such a circumstance, it would be difficult to imagine an ordinary reasonable person (and in turn the public at large) finding fault with recovery in such a scenario.

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