Lisa Sheehan v Bus Éireann/Irish Bus and Vincent Dower

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan,Mr. Justice Maurice Collins
• Judgment Date: 04 February 2022
• Neutral Citation: [2022] IECA 28
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2020/109

Between/

Lisa Sheehan

Plaintiff/Respondent

and

Bus Éireann/Irish Bus and Vincent Dower

Defendants/Appellants

[2022] IECA 28

Noonan J.

Collins J.

Binchy J.

Record Number: 2020/109

High Court Record Number: 2018/652

THE COURT OF APPEAL

Psychiatric injuries – Compensation – Duty of care – Plaintiff seeking compensation – Whether a duty of care was owed to the plaintiff by the deceased

Facts: On the 28th January, 2017, a motor car driven by a Mr O’Connor was travelling west on the N72 national secondary road near Mallow in County Cork when it collided head on with a bus coming in the opposite direction. Mr O’Connor was killed in the accident. The plaintiff, Ms Sheehan, brought a claim for purely psychiatric injuries suffered by her in consequence of witnessing scenes of horror following the accident. It was not in dispute that Mr O’Connor’s negligence was solely responsible for the collision and his insurer, FBD Insurance plc, nominated Mr Dower to represent Mr O’Connor’s estate as defendant. The proceedings had been discontinued against the owners of the bus, Bus Éireann/Irish Bus. The case was defended on a purely legal basis, namely that Mr O’Connor owed no relevant duty of care to the plaintiff in the circumstances of the case. Two arguments were advanced in support of that contention. The first was that the plaintiff was properly to be regarded in law as a “secondary victim” and she did not satisfy the criteria that would entitle a secondary victim to damages. The second argument rested on the premise that 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. The High Court (Keane J) held that the test for liability for negligently inflicted psychiatric injury is that set out by Hamilton C.J. in Kelly v Hennessy [1995] 3 IR 253, and the fifth requirement of that test, the existence of a duty of care, fell to be determined by reference to the dicta of Keane C.J. in Glencar Exploration plc v Mayo County Council (No. 2) [2002] 1 IR 84. Keane J concluded that an inflexible adherence to the rigid primary/secondary victim distinction articulated in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 has no role to play in Irish jurisprudence. He concluded that the plaintiff was in fact a primary victim so that the control mechanisms had no application. Turning to the second argument, the judge noted that this was entirely predicated on a judgment of the High Court of England and Wales in Greatorex v Greatorex [2000] 1 WLR 1970. In that case, Cazalet J 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. Keane J was of the view that this did not represent the law in Ireland and he declined to follow it. The defendant appealed to the Court of Appeal, re-agitating the contentions advanced in the High Court, arguing that the trial judge fell into error in holding that a duty of care was owed to the plaintiff in the circumstances.

Held by Noonan J that the trial judge correctly concluded that the plaintiff was entitled to succeed by an application of the Kelly principles and a duty of care was owed to her by the deceased.

Noonan J dismissed the appeal. As the plaintiff had been entirely successful, Noonan J’s provisional view was that she was entitled to her costs of the appeal.

Appeal dismissed.

Unapproved

No Redactions Needed

JUDGMENT of Mr. Justice Maurice Collins delivered on 4th February 2022

1 I agree with the judgment of Noonan J and accordingly I agree that this appeal should be dismissed. I wish to add a few brief observations of my own.

2 There was no dispute here that the road traffic accident that occurred on 28 January 2017 was caused by the negligent driving of the late Mr O'Connor ( “the Deceased”). (represented in these proceedings by the Second Defendant). So much was admitted by his insurers (High Court Judgment, para 8). Neither was there any dispute that the accident caused injury to Ms Sheehan. Having heard evidence from her and from the consultant psychiatrist called on her behalf (the Defendants not having called any evidence), the High Court Judge concluded that she had sustained “a significant psychiatric injury” and noted that that was not disputed by the Defendants (Judgement, para 26). That injury has had has a very significant impact on Ms Sheehan's life (Judgment, para 80). Thus the admittedly negligent driving of the deceased caused admitted and significant injury to Ms Sheehan.

3 The Deceased owed a duty of care to other road users not to cause injury to them by reason of his driving. Again, that is not disputed. Ms Sheehan was such a road user. It might seem to follow that, in causing injury to Ms Sheehan, the Deceased was in breach of that duty of care and the Second Defendant must therefore be liable to Ms Sheehan. Here, however, the Second Defendant demurs. What is said is that, whereas the Deceased undoubtedly was under a duty not to cause any physical injury to Ms Sheehan, he owed no duty to her not to cause her psychiatric injury. Ms Sheehan was not, the Second Defendant says, a “ direct participant” in the accident and as a mere secondary victim, policy considerations operate to exclude recovery by her.

4 I do not agree. None of the Irish authorities to which we were referred – which are discussed in detail by Noonan J – 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.

5 On the facts, Ms Sheehan was far from being a “ mere bystander or spectator” here:

(1) She was close enough to the collision that debris struck and damaged her car (within 100 metres of the point of impact according to Mr O'Sullivan, her engineer). In her evidence she described hearing a “loud bang” (Day 1, page 20) She was, the Judge found, “in the area of risk of foreseeable physical injury” (High Court Judgement, para 53)

(2) She brought her car to a halt “for no reason other than that she perceived something disturbing or alarming had occurred in the immediate vicinity” (Judgment, para 53);

(3) As she approached the crashed vehicles she noted that “ there was diesel all over the road” (Day 1, page 22);

(4) She appears to have been the first person on the scene (other than those involved in the collision);

(5) She approached the Deceased's car to see whether she could give aid or comfort to its occupants and saw what she thought was a child in the back (it was a dark winter's evening) but then realised that it was someone “with very bad facial injuries” who “looked slightly decapitated” and she “got such a fright” (Day 1, page 23). In her statement to the Gardaí shortly after the accident (confirmed by her in her evidence to the High Court) she said that “ there was blood everywhere”. It is clear from the evidence that the Deceased had sustained horrific injuries and, unfortunately, was beyond assistance. That fact does not, in my view, affect how Ms Sheehan's conduct is to be seen.

(6) Ms Sheehan then called the emergency services and was told to check on the people on the bus;

(7) She then looked to see whether there might have been anyone else in the car who might have been thrown out of it (Day 1, page 24).

(8) What Ms Sheehan experienced at the scene of the accident triggered an acute stress reaction and the diagnosis of “ classic post-traumatic stress disorder”. (Judgment, para 20).

6 Having regard to this continuum of intense (and injurious) involvement in the accident and its immediate aftermath, Ms Sheehan must in my view be regarded as a primary victim (or, as it is sometimes put, an “ immediate victim”) of the accident. She is therefore entitled to recover damages for the injury sustained by her. That is so even if one were to assume that the rigid primary/secondary classification that is a feature of the law of England and Wales in this area (though not, it seems, of the law of Australia: see Tame v New South Wales [2002] HCA 35 and, more recently, King v Philcox [2015] HCA 19) is also part of Irish law.

7 That conclusion opens no floodgates and creates no risk of “ liability in an indeterminate amount for an indeterminate time to an indeterminate class”, in the oft-quoted formulation of Cardozo CJ in Ultramares Corporation v. Touche, 174 N.E. 441 (1932).

8 In the circumstances, it is not strictly necessary to consider as a distinct issue whether Ms Sheehan is properly regarded as a “ rescuer”. However, if that question fell to be decided, I would hold that she was a rescuer in the circumstances here and entitled to recover on that basis. I agree with the Judge's analysis of this issue.

9 The Second Defendant relies on the view of the majority of the House of Lords in White v Chief Constable of South Yorkshire [1999] 2 AC 455 (also known as Frost v Chief Constable of South Yorkshire) that, for a rescuer to be regarded as a primary victim, it must be shown that they were exposed to the risk of physical injury or reasonably believed themselves to have been so exposed (though, curiously, it is not necessary to establish any causal connection between the rescuer's perception of danger — if indeed they perceived any danger — and the psychiatric injury suffered by them). 1

10 Here the Judge in fact found that Ms Sheehan exposed herself to danger in providing assistance at the scene of the crash...