In the case of Lisa Sheehan -v- Bus Eireann – Irish Bus and Vincent Dower [2020] IEHC160, Ms Sheehan was awarded a total of €87,238 in a judgment of the High Court dated the 3rd April 2020.

 

The case reviews the Irish Courts position on liability for negligently inflicted psychiatric damage at length. The case examined 2 fundamental questions –

 

  1. What is the nature and scope of the duty of care not to cause a reasonably foreseeable psychiatric injury to a person who was not directly involved in the accident caused by that breach of duty?

and

 

  1. Does the law recognise a right of recovery for the psychiatric consequences of witnessing an accident, if the primary victim is the tortfeasor (the driver of the vehicle causing the accident) rather than a blameless third party?

 

The background: A road traffic accident occurred on the 28th January 2017 when a bus was struck head on by a single occupant car. The driver of the car was killed in the accident. Ms Sheehan was driving home when some debris from the accident struck her car, causing her to brake. The accident had already occurred and she was not a witness to same. She got out and ran to the crashed car and saw a badly disfigured and partially decapitated body of what looked like a child in the back of the car. She called the emergency services and searched the area in the dark for other victims. She found the bus driver whose face was covered in blood. The victims of the accident were strangers to Ms Sheehan.

Ms Sheehan attended her GP 3 days after the accident, having suffered a panic attack at work. She was tearful, agitated and experiencing flashbacks of images of the accident. She was prescribed anxiolytic and antidepressant medication, referred for counselling sessions and certified as unfit for work. Unfortunately, her symptoms did not resolve and she was obliged to attend with a consultant psychiatrist subsequently. She continued to suffer with nightmares and flashbacks, which caused sleep disturbance. She was withdrawn and distant from everyone, including her husband and her family. She was irritable and hypervigilant and had outbursts of anger. She was diagnosed as having a moderately severe post traumatic stress disorder after an initial stress reaction at the scene of the accident, together with a depressive adjustment reaction. Despite continued therapy and medication, her prognosis for recovery remained guarded.

Test for Liability : In his judgment, Mr Justice Keane concluded that the test for liability for negligently inflicted psychiatric injury is that set out by Hamilton CJ in the Supreme Court case of Kelly -v- Hennessy [1995] 3IR 253. In that case, Hamilton CJ set out five proofs that a plaintiff must establish to succeed in a case for damages for negligently inflicted psychiatric injury. These elements are as follows: –

  1. That the plaintiff suffered a recognisable psychiatric illness - YES
  2. That the psychiatric illness was shock induced - YES
  3. That the shock (and, hence, the consequent psychiatric illness) were caused by the negligence of the defendant – YES
  4. That the shock was sustained by reason of actual or apprehended physical injury to the plaintiff or another person – YES

 

Duty of care: The fifth principle formed the basis of most of the court’s consideration.

  1. 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.

While Mr Justice Keane was of the view that the categorisation of victims as primary/secondary did not apply in the Irish Courts he did address same in the course of his judgment. He was of the view that Ms Sheehan was in fact a primary victim of the accident as she was a motorist within the radius of flying debris from the collision and therefore in the area of risk of foreseeable physical injury.

 

Right of Recovery : The second issue which the court had to consider was the argument put forward by the defendants’ that Ms Sheehan’s claim for damages must fail because, as a matter of policy, there is no liability in negligence where the primary victim was the negligent defendant and 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. 

Mr Justice Keane concluded that Ms Sheehan had satisfied each of the elements of the test to establish liability for negligently inflicted psychiatric injury.

Ms Sheehan was then awarded general damages in the sum of €65,000 to date and €20,000 for general damages into the future, totalling €85,000. Agreed special damages in the sum of €2,238 were also awarded, making a total of €87,238.

This judgment is significant as it affirms the importance in nervous shock cases of satisfying the 5 point test.   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.

 

If you need advice on any related matters related please contact us on 01 6770335 or email info@joyntcrawford.ie 

 

The content of this notice is provided for information purposes only and does not constitute legal or other advice.

In the case of Lisa Sheehan -v- Bus Eireann – Irish Bus and Vincent Dower [2020] IEHC160, Ms Sheehan was awarded a total of €87,238 in a judgment of the High Court dated the 3rd April 2020.

The case reviews the Irish Courts position on liability for negligently inflicted psychiatric damage at length. The case examined 2 fundamental questions –

  1. What is the nature and scope of the duty of care not to cause a reasonably foreseeable psychiatric injury to a person who was not directly involved in the accident caused by that breach of duty?

and

  1. Does the law recognise a right of recovery for the psychiatric consequences of witnessing an accident, if the primary victim is the tortfeasor (the driver of the vehicle causing the accident) rather than a blameless third party?

The background: A road traffic accident occurred on the 28th January 2017 when a bus was struck head on by a single occupant car. The driver of the car was killed in the accident. Ms Sheehan was driving home when some debris from the accident struck her car, causing her to brake. The accident had already occurred and she was not a witness to same. She got out and ran to the crashed car and saw a badly disfigured and partially decapitated body of what looked like a child in the back of the car. She called the emergency services and searched the area in the dark for other victims. She found the bus driver whose face was covered in blood. The victims of the accident were strangers to Ms Sheehan.

Ms Sheehan attended her GP 3 days after the accident, having suffered a panic attack at work. She was tearful, agitated and experiencing flashbacks of images of the accident. She was prescribed anxiolytic and antidepressant medication, referred for counselling sessions and certified as unfit for work. Unfortunately, her symptoms did not resolve and she was obliged to attend with a consultant psychiatrist subsequently. She continued to suffer with nightmares and flashbacks, which caused sleep disturbance. She was withdrawn and distant from everyone, including her husband and her family. She was irritable and hypervigilant and had outbursts of anger. She was diagnosed as having a moderately severe post traumatic stress disorder after an initial stress reaction at the scene of the accident, together with a depressive adjustment reaction. Despite continued therapy and medication, her prognosis for recovery remained guarded.

Test for Liability : In his judgment, Mr Justice Keane concluded that the test for liability for negligently inflicted psychiatric injury is that set out by Hamilton CJ in the Supreme Court case of Kelly -v- Hennessy [1995] 3IR 253. In that case, Hamilton CJ set out five proofs that a plaintiff must establish to succeed in a case for damages for negligently inflicted psychiatric injury. These elements are as follows: –

  1. That the plaintiff suffered a recognisable psychiatric illness - YES
  2. That the psychiatric illness was shock induced - YES
  1. That the shock (and, hence, the consequent psychiatric illness) were caused by the negligence of the defendant – YES

 

  1. That the shock was sustained by reason of actual or apprehended physical injury to the plaintiff or another person – YES

Duty of care: The fifth principle formed the basis of most of the court’s consideration.

  1. 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.

While Mr Justice Keane was of the view that the categorisation of victims as primary/secondary did not apply in the Irish Courts he did address same in the course of his judgment. He was of the view that Ms Sheehan was in fact a primary victim of the accident as she was a motorist within the radius of flying debris from the collision and therefore in the area of risk of foreseeable physical injury.

Right of Recovery : The second issue which the court had to consider was the argument put forward by the defendants’ that Ms Sheehan’s claim for damages must fail because, as a matter of policy, there is no liability in negligence where the primary victim was the negligent defendant and 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.

 

Mr Justice Keane concluded that Ms Sheehan had satisfied each of the elements of the test to establish liability for negligently inflicted psychiatric injury.

 

Ms Sheehan was then awarded general damages in the sum of €65,000 to date and €20,000 for general damages into the future, totalling €85,000. Agreed special damages in the sum of €2,238 were also awarded, making a total of €87,238.

 

This judgment is significant as it affirms the importance in nervous shock cases of satisfying the 5 point test.   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.

 

If you need advice on any related matters related please contact us on 01 6770335 or email info@joyntcrawford.ie 

 

The content of this notice is provided for information purposes only and does not constitute legal or other advice.

Joynt & Crawford LLP
8 Anglesea St, Dublin 2
Eircode - D02 C640
Tel : +353 1 677 0335
Fax: +353 1 677 7274

Dx no: 253 013 Dame Street
Email: info@joyntcrawford.ie


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