Nervous shock cases should ‘be considered on their merits’

The law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify

The High Court in Dublin recently considered a case of nervous shock suffered by a third-party witness to the aftermath of a fatal road traffic collision.

In January 2017, there was a collision between a car and a bus on the N72 near Mallow, Co. Cork.  Although the Plaintiff was not directly involved, her car was struck by some debris from the collision.  As she stopped and got out to help, the Plaintiff saw what transpired to be the decapitated body of the car’s driver.  The bus driver subsequently emerged with his face covered in blood.  Neither party were known to her. 

The Plaintiff suffered a ‘depressive adjustment reaction’ and developed ‘a moderately severe post-traumatic stress disorder’ (PTSD) as a result of what she saw. 

The case turned on whether the Defendants owed a duty of care to the Plaintiff not to cause her a reasonably foreseeable injury namely psychiatric damage.

following the Hillsborough disaster in 1989, the House of Lords created a distinction in Alcock v Chief Constable of South Yorkshire between (a) primary victims – who were directly involved in a shocking incident and (b) secondary victims – such as close family members of those killed or injured.  To succeed in a claim for psychiatric harm, a secondary victim must have: (i) a close tie to a primary victim; (ii) personally witnessed the event or aftermath; (iii) been in proximity to it, and (iv) suffered the psychiatric injury as a result.

In the instant case, it was argued that if the Plaintiff was a ‘secondary victim’ of the deceased driver’s negligence she was not entitled at law to recover damages for purely psychiatric injury. 

Giving judgement for the Plaintiff, Mr Justice Keane took a less rigid view in finding that nervous shock cases should ‘be considered on their merits’ rather than strict proximity to the incident.  The Plaintiff’s vehicle had been damaged and she sought to assist as a rescuer.  It was, therefore, ‘just and reasonable’ in the circumstances to ground liability in the Defendant awarding damages of €85k.

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