Sheehan v Bus Eireann/Irish Bus & Anor (Approved) [2020] IEHC 160 (03 April 2020)

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JUDGMENT of Mr Justice David Keane delivered on the 3rd April 2020

1. In this personal injuries action, the plaintiff Lisa Sheehan seeks damages for the

psychiatric injury that resulted from her presence at the scene of a road traffic accident.

The defendants are the persons responsible for each of the two vehicles directly involved

2. The case raises two fundamental issues on the law governing liability for negligently

inflicted psychiatric damage. First, what is the nature and scope of the duty of care not to

cause a reasonably foreseeable psychiatric injury to a person who is not directly involved

in the accident caused by that breach of duty? Second, does the law recognise a right of

recovery for the psychiatric consequences of witnessing an accident, if the primary victim

3. The accident occurred after dark on the winter evening of 28 January 2017, at a point on

the N72 national secondary road in the townland of Gearanaskagh, a short distance west

of Mallow, County Cork. A passenger bus travelling east was struck head on by a single

occupant motor car travelling west. The bus was owned and operated by the first

defendant Bus Éireann. The driver of the car was killed in the crash and the second

defendant Vincent Dower is the nominated representative of that vehicle’s insurer, FBD

4. When the accident happened, Ms Sheehan was driving alone on the westbound

carriageway of the N72, commuting from her job as a hairdresser in Cork city to her

home in the village of Banteer in North Cork. Although Ms Sheehan did not see the

collision take place ahead of her on the dark roadway, some debris from it struck her car,

prompting her to brake to a halt. On getting out of her car to investigate, she saw the

damaged bus, stationary on the eastbound carriageway to her right. Then she saw the

car, motionless and severely damaged, a short distance in front of her on the westbound

carriageway. There was diesel oil and, perhaps, blood on the roadway. She ran to the car

and, on peering into the back, glimpsed the badly disfigured and partly decapitated body

of what looked like a child, which gave her a tremendous fright. Although in shock, Ms

Sheehan called the emergency services on her mobile phone to report the accident and

summon help. Before help arrived, she searched the surrounding area for other victims

who might have been thrown from the car. Providentially, there were none. The

mutilated body in the back was that of the adult driver; it had been propelled there by the

tremendous forces involved in the impact between the two vehicles. Ms Sheehan later

encountered the driver of the bus, whose face was covered in blood. After the emergency

services arrived, a guard who was concerned about her mental state advised Ms Sheehan

to have someone come to collect her and to immediately consult her general practitioner

but, in hindsight perhaps rashly, Ms Sheehan decided to drive home as she did not want

5. The deceased driver of the car and the driver and occupants of the bus were strangers to

6. Nonetheless, because of what she witnessed at the scene of the accident, Ms Sheehan

experienced a depressive adjustment reaction and developed a moderately severe post-

traumatic stress disorder for which the prognosis remains guarded. Those are the injuries

7. Ms Sheehan pleads that those injuries have resulted from the negligent operation or

control of one, or both, of the vehicles involved in the crash, making one, or both, of the

8. Bus Éireann denies negligence. FBD admits that the accident was caused by the

negligence of the driver of the car. Its solicitors have now taken over the defence of the

9. Both sides acknowledge that the resolution of the case turns on the plea advanced by FBD

that, on the facts presented, Ms Sheehan’s psychiatric injuries do not give rise to any

cause of action recognised by the law, in that the defendants did not owe her any duty of

care for two reasons; first, because Ms Sheehan was merely a ‘secondary victim’ of the

accident and cannot meet the additional requirements that, as a matter of policy, the law

imposes on persons in that category, to establish the existence of such a duty; and

second, because the driver of the car was a ‘primary victim’ of self-inflicted injuries and,

as such, owed no duty to a secondary victim, such as Ms Sheehan, who suffered

psychiatric injury as a result. In support of the first proposition, the defendants rely on

the principles developed in a trilogy of House of Lords decisions commencing with Alcock

v Chief Constable of South Yorkshire Police [1992] 1 AC 310, continuing with Page v

Smith [1996] AC 155, and culminating in White v Chief Constable of South Yorkshire

Police [1999] 2 AC 455 (on appeal from Frost v Chief Constable of South Yorkshire Police

[1998] QB 254 (CA)). In support of the second, they rely on the judgment of Cazalet J in

the High Court of England and Wales in Greatorex v Greatorex [2000] 1 WLR 1970.

10. A personal injuries summons issued on behalf of Ms Sheehan on 25 January 2018. Each

of the defendants entered an appearance on 6 March 2018. The defence of FBD was

delivered on 15 May 2018 and that of Bus Éireann on 4 July 2018. Ms Sheehan issued a

11. The trial of the action took place in Cork on 21 and 22 January 2020. Ms Sheehan was

represented by Eoin Clifford SC and John Lucey SC with Colmán Ó Donnchadha BL,

instructed by Martin A. Harvey, Solicitors. The defendants were represented by John

Lynch SC with Donal T. McCarthy BL, instructed by O’Riada, Solicitors. I am grateful to

12. There is only very limited conflict between the parties on the material facts.

13. Just two witnesses gave evidence at trial. They were Ms Sheehan, the plaintiff, and John

G. Sullivan, an independent expert engineer and assessor retained on her behalf. The

14. By agreement between the parties, various medical reports were admitted into evidence

without formal proof. It is to the contents of those reports and to Ms Sheehan’s

15. Ms Sheehan is a married woman with two young children. At the time of accident, she

16. On Tuesday, the 31 January 2017, three days after the accident, she went to her general

practitioner, Dr Jacinta Barry, having suffered a panic attack at work. She was tearful

and agitated and reported that she could not get the images of the accident out of her

mind. Dr Barry prescribed anxiolytic (anxiety inhibiting) and anti-depressant medication,

referred Ms Sheehan for counselling, and certified her as unfit for work over the next five

weeks. Due to subsequent recurrences of acute anxiety, Ms Sheehan had to take further

17. Ms Sheehan’s symptoms did not resolve, and in May 2017 Dr Barry referred her for

evaluation to Dr Mairead O’Leary, consultant psychiatrist. Dr O’Leary saw Ms Sheehan on

18. Ms Sheehan described her condition to Dr O’Leary in the following way. She used to be

outgoing but was now completely different. She slept badly and frequently woke up with

nightmares. She felt distant from everyone, even her husband and children, which

distressed her. She had outbursts of anger, which made her feel guilty. She was

continuously irritable and on edge. She thought constantly about the victim of the

accident and could not stop ruminating about what she had seen. She tried to avoid

passing the scene of the accident, as doing so caused her to have very intense and

unpleasant flashbacks. Her condition since the accident had put a great strain on her

family relationships. Normal intimacy with her husband had ceased. Although her family

had been very happy in their rural home prior to the accident, Ms Sheehan had developed

great anxiety about the associated level of family car travel and wanted to move to an

urban area where it would be less, although her husband did not. This had become a

19. Dr O’Leary observed that Ms Sheehan described, and was in, a state of autonomic

hyperarousal and hypervigilance (which I understand to mean one of persistent,

20. Dr O’Leary diagnosed classic post-traumatic stress disorder (‘PTSD’), consequent upon Ms

Sheehan’s acute stress reaction to what she experienced at the scene of the accident. Dr

O’Leary recommended psychotherapy and referred Ms Sheehan to a clinical psychologist

for eye movement desensitisation and reprocessing (‘EMDR’) therapy and counselling. In

offering a prognosis, Dr O’Leary noted that fifty percent of those who experience PTSD

recover within twelve months before concluding that, in view of Ms Sheehan’s condition

when assessed almost ten months after the accident, she was unlikely to be in that

cohort. However, Dr O’Leary was hopeful that, in time, Ms Sheehan would make a full

recovery, subject to a twenty-five percent chance of further anxiety, depression or stress-

21. Dr R.M. Kennefick, a general practitioner, examined Ms Sheehan on 5 June 2018 as an

independent medical expert on behalf of the defendants. In his report, he acknowledged

that her condition satisfies the requirements for a diagnosis of PTSD, although he felt that

she had made good progress in the time since her accident; that her residual symptoms

were not of a significant nature; and that she should make a satisfactory recovery within

22. Dr O’Leary met with Ms Sheehan for a further review on 8 May 2019. Ms Sheehan

reported that her condition had not improved. Her family relationships were still strained.

She still wanted to move to an urban area to minimise her family’s car travel. She had

ceased her work as a hairdresser in February 2019, as she had been unable to

concentrate. She remained hyper-aroused and hypervigilant. She continued to ruminate

on the accident she had witnessed, and to have flashbacks and nightmares about it.

23. Dr O’Leary recorded that, during that assessment, Ms Sheehan became tearful and sad,

and was visibly anxious and agitated, expressing apprehension and pessimism about the

future. Dr O’Leary concluded that Ms Sheehan had still not then recovered from her PTSD,

despite the medication she was on (including the occasional use of sedatives, as well as

tranquilisers), and the counselling and therapy she was undergoing.

24. Dr John Dennehy, consultant psychiatrist, assessed Ms Sheehan as an independent

medical expert on behalf of the defendants on 10 September 2019. He too expressed the

opinion that Ms Sheehan had experienced a moderately severe post-traumatic stress

disorder after an initial stress reaction at the scene of the accident, together with a

depressive adjustment reaction, which had improved but which had a persistent

25. Dr Dennehy noted that Ms Sheehan was to continue with therapy and medication.

Nonetheless, he expressed the view that the prognosis for her recovery remained guarded

26. Thus, I conclude – and the defendants do not dispute for the purpose of these

proceedings – that Ms Sheehan has sustained a significant psychiatric injury.

27. As the authors of McMahon and Binchy, The Law of Torts (4th ed., 2013) explain (at para.

17.10), whereas most common law jurisdictions were initially hostile to the assertion of a

duty to avoid causing ‘nervous shock’ (as the law then described psychiatric injury),

28. In Bell v Great Northern Railway Company of Ireland (1890) 26 LR (Ir) 428 (Ex Div), a

case that arose from the terrible 1889 Armagh rail disaster, Chief Baron Palles, who has

been described as the embodiment of the common law in Ireland in the nineteenth

century (V.T.H. Delany, Christopher Palles: His Life and Times (Dublin, 1960) (at p. 3)),

expressed the now orthodox view that if negligence causes fright, which, in turn, causes

psychiatric injury, then liability may follow even if that injury occurs or develops over

29. In reaching that conclusion, the Chief Baron expressly refused to follow the judgment

delivered two years earlier by Sir Richard Couch for the Judicial Committee of the Privy

Council in Victorian Railway Commissioners v. Coultas (1888) 13 App Cas 222,

confirming the view then prevalent that damages arising from a mere sudden terror,

unaccompanied by any physical injury, but occasioning psychiatric injury, could not be

considered a consequence which, in the ordinary course, would flow from the negligent

conduct that caused that fright. The plaintiff in that case had suffered severe shock (and

subsequently, as Palles CB noted, a miscarriage) when a train narrowly missed the horse-

drawn buggy in which she was travelling, due to the negligence of the gate-keeper at a

level crossing. The Chief Baron criticised the assumption made by the Privy Council in

that case that, as a matter of law, nervous shock was something that affected the mental

functions but was not itself a peculiar physical state of the body (i.e. not really a

separately cognisable ‘injury’), before concluding that ‘[t]his error pervades the entire

30. The Chief Baron went on to explain that he did not have to follow that authority because

he was bound instead by the earlier decision of the Court of Appeal in Ireland in Byrne v

Great Southern and Western Railway Company (Unreported, February 1884), upholding a

verdict for a plaintiff, the superintendent of the telegraph office at Limerick Junction

railway station, who, although physically unharmed, had suffered psychiatric injury from

the shock he received when a train crashed through a buffer and then the wall of that

31. Just over a century later, in Mullaly v Bus Éireann [1992] ILRM 722 (HC), Denham J relied

strongly on the decision in Bell in support of her conclusion that the post-traumatic stress

disorder that the plaintiff developed after seeing her husband and three of her sons in

hospital, badly injured in the immediate aftermath of a serious road traffic accident,

amounted to a psychiatric illness that was a readily foreseeable consequence of the

32. The leading modern authority on negligently inflicted psychiatric injury is the decision of

the Supreme Court in Kelly v Hennessy [1995] 3 IR 253. In that case, the plaintiff was

informed by telephone that her husband and two daughters had just been seriously

injured in a car crash and immediately afterwards saw each of them in an appalling

condition in hospital. As a result, she developed post-traumatic stress disorder.

Hamilton CJ summarised the five things that a plaintiff must establish to succeed in an

action for damages for negligently inflicted psychiatric injury (at 258-260). Shortly

(i) that the plaintiff suffered a recognisable psychiatric illness;

(iii) that the shock (and, hence, the consequent psychiatric illness) were caused by the

(iv) that the shock was sustained by reason of actual or apprehended physical injury to

(v) 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.

33. The resolution of the present case turns on the application of the fifth limb of the test just

34. The most recent authoritative statement of the test for the existence of a duty of care is

that of Keane CJ in Glencar Exploration plc v Mayo County Council (No. 2) [2002] 1 IR 84

‘There is, in my view, no reason why courts determining whether a duty of care

arises should consider themselves obliged to hold that it does in every case where

injury or damage to property was reasonably foreseeable and the notoriously

difficult and elusive test of "proximity" or "neighbourhood" can be said to have been

met, unless very powerful public policy considerations dictate otherwise. It seems

to me that no injustice will be done if they are required to take the further step of

considering whether, in all the circumstances, it is just and reasonable that the law

should impose a duty of a given scope on the defendant for the benefit of the

plaintiff, as held by Costello J. at first instance in Ward v. McMaster [1985] IR. 29,

by Brennan J. in Sutherland Shire Council v. Heyman (1985) 157 CLR 424 and by

the House of Lords in Caparo Industries plc. v. Dickman [1990] 2 AC 605. As

Brennan J. pointed out, there is a significant risk that any other approach will result

in what he called a "massive extension of a prima facie duty of care restrained only

35. The defendant’s first argument is that Ms Sheehan was merely a secondary victim of the

road traffic accident in this case and that, as such, even if she can establish that her

psychiatric illness was a reasonably foreseeable consequence of the defendants’

negligence, she cannot bring herself within the restricted category of such victims whose

claims can succeed under the rigid test developed by the UK House of Lords in the cases

36. In Alcock (at 409), Lord Oliver divided psychiatric injury cases into two categories, ‘those

cases in which the injured plaintiff was involved, either mediately or immediately, as a

participant and those in which the plaintiff was no more than a passive and unwilling

witness of injury caused to others’, before adopting the term ‘primary victim’ to refer to a

person in the first category (at 406). In Page (at 184), Lord Lloyd appeared to narrow

the concept of primary victim to a person ‘directly involved in the accident’ and ‘within the

37. As summarised by Lord Steyn in White (at 496), to succeed in a claim for damages for

psychiatric injury as a secondary victim, it is necessary to establish: (i) that the plaintiff

had a close tie of love and affection with the person killed, injured or imperilled; (ii) that

the plaintiff was close to the incident in time and space; (iii) that the plaintiff directly

perceived the incident rather than, for example, hearing about it from a third person.

Having been first enunciated by Lord Ackner in Alcock (at 402), those requirements are

frequently referred to as the Alcock control mechanisms (see, for example, the judgment

38. The defendants point out that Ms Sheehan had no ties with the driver who died in the

accident in this case. They also argue – relying heavily on Ms Sheehan’s description in

both her pleadings and her evidence of ‘coming upon’ the scene of the accident – that she

was not particularly close to the incident in time and space at the moment when it

occurred. Finally, because Ms Sheehan acknowledges that she did not see the collision

between the two vehicles on the dark road, they submit, in effect, that she did not

39. On this question, I consider Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343, a decision

of Judge McMahon in the Circuit Court, a most persuasive authority, due both to the

clarity and thoroughness of its analysis and to the venerable position that Judge McMahon

(later Mr Justice McMahon) holds as co-author of McMahon and Binchy, The Law of Torts

‘There has been a tendency in recent years, especially in English cases, to divide

victims in these type of cases into two categories: primary victims and secondary

victims (See Lord Oliver in Alcock v. Chief Constable of South Yorkshire Police

[1992] 1 AC 310 and Lord Lloyd in Page v. Smith [1996] 1 AC 155). Such

categorisation is not without difficulties and has been criticised (See Law

Commission Report (England), Liability for Psychiatric Illness (1998) Law Com. No

249, at para. 5.50, which followed the Law Commission's Consultation Paper No.

137 (1995), where the suggestion is that the distinction should be abandoned as it

is unhelpful). For my own part, I am not convinced that the separation of victims

into these two categories does anything to assist the development of legal

principles that should guide the courts in this complex area of the law. Hamilton CJ

(with whom Egan J agreed) did not refer to the distinction in Kelly v. Hennessy

[1995] 3 IR 253; [1996] 1 ILRM 321 the leading Irish case on the matter, and

while Denham J, in the same case, used the term ‘secondary victims’ to describe

the aftermath relatives who were plaintiffs in that case, her primary focus was

naturally on the plaintiff before her rather than on persons who were more directly

involved in the accident. She did, however, give a clear definition as to what she

meant by the terms when she said of the victim before her (at p.269):

“The plaintiff was not a primary victim; that is to say she was not a

participant in the accident. Her case is that she is a secondary victim; that is

to say one who did not participate in the accident, but was injured as a

‘After White the English position is as follows: persons who suffer negligently

inflicted psychiatric illness are divided into two groups: primary victims and

secondary victims. Primary victims are variously defined as those who were also

exposed to physical injury or who were in the area of risk of physical injury or who

were participants or directly involved in the accident. Secondary victims include

mere bystanders or spectators. There appear to be no other categories, so that all

claimants are either primary or secondary victims. The law views secondary victims

as being less deserving and consequently, it demands that those victims must, for

policy reasons, satisfy the courts in addition to the ordinary negligence

requirements, that there was a ‘close’ relationship between the claimant and the

victim, that they were spatially and temporally near the accident and that they

perceived the events through their own senses. White, in effect, held that rescuers

and employee claimants who up to then had been considered to be entitled to

recover without having to concern themselves with ‘the control mechanisms’, are

now treated as secondary victims also. To succeed, therefore, a rescuer must now

show that he has a ‘close’ relationship with the injured person(s) and that he

complies also with the other policy requirements. White also decided that there is

no general duty of care owed by the employer to his employees in respect of

psychiatric illness, and employees, like other secondary victims, must now also

surmount the policy control mechanisms if they wish to recover. Finally, the English

courts have held in Page v. Smith, supra, that if the defendant could foresee

personal injury (i.e. physical or psychiatric illness) he will be liable if the claimant

In contrast, to recover for this type of injury in the Irish courts, the claimant must

comply with the five conditions laid down by Hamilton CJ (with whom Egan J

agreed) in Kelly v. Hennessy. Nowhere in the Chief Justice's judgment is there any

reference to primary or secondary categories. Denham J in the same case seemed

to accept the distinction, and indicated that to be a primary victim one had to be a

‘participant’ in the events. As opposed to the English position, Hamilton CJ also held

that to recover in Ireland for nervous shock, the defendant had to foresee nervous

shock and not merely personal injury in general. When addressing these issues in

Kelly, the Irish courts relied heavily on the Australian approach as expressed in

Jaensch v. Coffey [(1984) 155 CLR 549 (HCA)], an approach which has been

Two things become clear from this: first, the law on this topic is far from settled in

either jurisdiction; second, a divergence of approach between the two jurisdictions

is becoming increasingly obvious and perhaps inevitable. Several questions have

yet to be confronted by the Irish courts: should the law in this jurisdiction accept

the primary/secondary classification?; are there to be other classes — tertiary

victims for example?; if not, are there to be exceptions to the primary/secondary

categories — e.g. rescuers and/or employees?; is ‘participation’ to be the criterion

in determining primary victims?; is it necessary for a defendant to foresee nervous

shock or is it sufficient if he foresees ‘personal injury’ of some kind?; are the

occupational stress cases like Walker v. Northumberland County Council [1995] 1

All ER 737 where the plaintiff is clearly a primary victim, but where the injury is not

shock induced, affected by these developments?; and perhaps, most fundamental

of all: is the distinction between physical and psychiatric injury medically or legally

defensible nowadays? (See Lord Lloyd of Berwick in Page v. Smith [1996] 1 AC

The House of Lords' decision in White is somewhat reminiscent of its earlier decision

in Murphy v. Brentwood District Council [1991] 1 AC 398 where it resiled from its

earlier approach in Anns v. Merton London Borough Council [1978] AC 728 on the

general duty of care issue. This withdrawal was never followed by the Irish courts,

who in Ward v. McMaster, supra, and a succession of cases thereafter, kept faith

with the Anns approach. From the Supreme Court's reliance on the Australian

authorities in Kelly, it would seem that the Irish courts will not be overawed by

White and may well choose, as it did in Ward v. McMaster, to go its own road,

42. Fletcher v Commissioners or Public Works [2003] 1 IR 465 was a case of acknowledged

psychiatric injury – in the form of an anxiety disorder linked to the risk of contracting

mesothelioma - caused by the plaintiff’s exposure to asbestos dust through the admitted

negligence of the defendants as his employers. The requirement to establish that the

psychiatric injury was shock induced, under the second limb of the test in Kelly, was an

obvious obstacle to the success of any such claim, which suggests that an extension of

the law on policy grounds would have been necessary to enable it to succeed.

43. Keane CJ noted (at 475) that the Supreme Court was not concerned in that appeal with

any distinction between ‘primary victims’ and ‘secondary victims’, before pointing out

that, while the plaintiff in Kelly undoubtedly belonged to what the English cases describe

as the category of ‘secondary victims’, the decision that she was entitled to recover

damages had been upheld by the Supreme Court on the basis that her claim met the five

generally applicable conditions identified by Hamilton CJ in that case.

44. In his judgment in Fletcher, Geoghegan J was careful to say, in referring to Alcock, that

he did so to elicit general principles governing claims for psychiatric injury, and not to

approve or disapprove it in light of the great problems with it identified in subsequent

cases (at 503), before later observing that Lord Oliver’s distinction between primary and

secondary victims was of little importance for the case at bar (at 505), and ultimately

concluding that it was unnecessary to express any final opinion on the matter ‘not least

because the primary/secondary distinction has been criticised (see for instance the

judgment of His Honour Judge McMahon in Curran [already cited] (at 519).’

45. In Cuddy v Mays [2003] IEHC 103, (Unreported, High Court, 28 November 2003), a case

brought by a hospital porter who suffered psychiatric injury when a number of his close

relatives and friends who had been killed or injured in a road traffic accident were brought

to the hospital where he was on duty, Kearns J refused an invitation to further clarify the

application in Ireland of the legal principles identified in Alcock, Page and White, on the

basis that. to resolve the matter, it was simply necessary to rely on the authority of the

46. In the course of argument, I was referred to the decision of the Supreme Court in Devlin

v National Maternity Hospital [2008] 2 IR 222, upholding the decision of the High Court

([2004] IEHC 437, (Unreported, O’Donovan J, 1 July 2004)) to grant a non-suit. The

plaintiffs in the case were the parents of a stillborn infant, upon whom the defendant

hospital had performed a post-mortem without the parents’ consent, removing and

retaining some of the infant’s organs. The infant’s mother had developed PTSD after

learning of those events. At trial and on appeal, the case was decided on the basis that

the plaintiffs could not meet the fourth requirement to establish liability under the test in

Kelly because there was no evidence that the mother’s shock was sustained by reason of

actual or apprehended physical injury to her or to another person. The plaintiffs asked

the Supreme Court to extend the law by disapplying that limb of the test. The Supreme

Court (per Denham J at 239-240) declined to do so on policy grounds. The situation in

47. It only remains to note, as summarised by the authors of Charlesworth & Percy on

‘The primary/secondary distinction has failed to take root in Australia (Tame v

NSW: Annets v Australian Stations Pty Ltd (2003) 211 CLR 317, HCA) and New

Zealand (van Soest v Residual Health Management Unit [2000] 1 NZLR 179,

NZCA), and has been rejected in Canada (Mustapha v Culligan of Canada Ltd

(2007) 275 DLR 473, Ont CA) (appeal dismissed [2008] 2 SCR 114, SCC, without

discussion of the point). Some members of the House of Lords have questioned

whether the distinction ought to be retained: see Rothwell v Chemical Insulating Co

[2008] 1 AC 381, at [52] per Lord Hope, [104] per Lord Mance; Corr v IBC Vehicles

48. Having considered these authorities, I conclude as follows. First, the test for liability for

negligently inflicted psychiatric injury is that set out by Hamilton CJ in Kelly. The test for

the existence of a duty of care, the fifth requirement of the test in Kelly, is that

articulated by Keane CJ in Glencar Exploration plc. A rigid primary/secondary victim

distinction, entailing an inflexible adherence to the Alcock control mechanisms, has no

role to play in the application of either. To paraphrase the words of McCarthy J in Irish

Shell Ltd v Elm Motors Ltd [1984] IR 200 (at 227), whilst the judgments in cases decided

in the English Courts at all levels will, on a great many occasions, provide convenient and,

indeed, convincing statements of principle and attractive arguments in favour of such

ii. is Ms Sheehan a primary or secondary victim of the accident in this case?

49. It is convenient at this point to consider in a little more detail the evidence on the nature

and extent of Ms Sheehan’s involvement in the accident. To recap briefly, although Ms

Sheehan did not see the accident happen ahead of her on the dark roadway, some debris

struck her car, prompting her to brake to a halt, after which she got out to investigate.

50. In evidence at trial, Ms Sheehan stated that when the debris struck her car, she also

heard a loud bang, although she acknowledged that she had made no mention of that in

the statement that she gave to the guards on 6 February 2017. Ms Sheehan accepted

that, in describing the incident to her general practitioner and, indeed, in both her

pleadings and her evidence to the court, she had described ‘coming upon’ the scene of

51. In his evidence to the court, John G. Sullivan, the independent expert engineer and

assessor retained on Ms Sheehan’s behalf, stated that he had inspected Ms Sheehan’s

vehicle on 3 February 2019. While that was some considerable time after the accident,

the vehicle had not been repaired. He observed that a small hole had been punched in

the nearside front bumper; a headlamp washer cover was missing from it; and a separate

52. Mr Sullivan had been furnished with a copy of the sketch of the accident scene from the

garda abstract report. Considering the measurements recorded on that sketch in

conjunction with Ms Sheehan’s testimony, and assuming that Ms Sheehan’s vehicle had

been travelling at a speed of 80km/h and had begun to brake when struck by the debris

before coming to a halt beside the resting position of the damaged bus, then, by Mr

Sullivan’s estimate, Ms Sheehan’s vehicle was approximately 100 metres from the point

of impact when the collision between the car and the bus occurred ahead of her. Mr

Sullivan drew additional support for that conclusion from his opinion that, given the

physical forces involved in the crash and his experience of similar collisions, he would not

expect debris to have travelled much more than 100 metres from the point of impact.

53. Because Ms Sheehan did not actually see the car collide with the bus in the dark and

because, in that context, Ms Sheehan herself described ‘coming upon’ the scene of the

collision when she got out of her own car, the defendants urge me to conclude that she

was not a ‘primary victim’ of the accident. For the reasons I have already given, I do not

think that anything turns on the point. But lest I am mistaken in that regard, I propose

to address it. Ms Sheehan’s car was directly struck by debris from the collision and she

brought her vehicle to a stop on a dark country road for no other reason than that she

perceived something disturbing or alarming had occurred in the immediate vicinity. As a

motorist within the radius of flying debris from the collision, I am satisfied that she was in

the area of risk of foreseeable physical injury and, as a motorist whose vehicle was struck

by flying debris, I am satisfied that she was a participant in the accident, albeit one on

the periphery of it. Applying the definition of ‘primary victim’ so construed, I would

conclude that Ms Sheehan was a primary, rather than secondary, victim of the accident,

were it necessary to consider and apply that distinction for the purpose of the law on

liability for negligently inflicted psychiatric injury – although I do not accept that it is.

54. Although the defendants have contested Ms Sheehan’s status as a participant in the

accident, they do accept that she was a rescuer. Ms Sheehan approached the crashed car

to offer help. On seeing the body of its occupant, she telephoned the emergency services

for assistance. While waiting for those services to arrive, she searched the surrounding

area in case there were other occupants who had been thrown from the vehicle. She did

those things in darkness in the immediate aftermath of a serious accident on a national

secondary route, before any steps could be taken to properly alert other motorists to that

hazard. Thus, it would be difficult to conclude that Ms Sheehan was not exposed to

55. In considering the modern law on the entitlement of rescuers to recover damages for

negligently inflicted injury, the starting point remains the celebrated dictum of Cardozo J

for the Court of Appeals in New York in Wagner v International Railway Co 133 NE 437,

‘Danger invites rescue. The cry of distress is the summons to relief. The law does

not ignore these reactions of the mind in tracing conduct to its consequences. It

recognises them as normal. It places their efforts within the range of the natural

and probable. The wrong that imperils life is a wrong to the imperilled victim; it is

56. Though not disapproving of it, Lord Hoffman in White described this as ‘a florid passage’

that had led some commentators to conclude, wrongly, that rescuers form a special class,

whose members are entitled to recover outside ordinary negligence principles, whereas it

plainly does no more than confirm their entitlement to successfully rely on those

principles in appropriate cases (at 508). While, as Posner has pointed out, Cardozo’s

aphoristic style has its detractors, (Posner, Cardozo – A Study in Reputation (1990,

Chicago) (at pp. 10-12)), I think it is fair to say that they have always been outnumbered

by its admirers (see, for example, O’Dell, Danger Invites Rescue – The Tort of Negligence

and the Rescue Principle, (1992) 14 DULJ 65). But more importantly, for present

purposes at least, the principle Cardozo J identified, in whatever language it is couched,

has never since been seriously doubted in this jurisdiction. So, for example, in the

Supreme Court in Philips v Durgan [1991] 1 IR 89 (at 96), Griffin J cited with approval

the following passage from the judgment of Lord Denning MR in Videan v British

‘... if a person by his fault creates a situation of peril, he must answer for it to any

person who attempts to rescue the person who is in danger. He owes a duty to

such a person above all others. The rescuer may act instinctively out of humanity

or deliberately out of courage. But whichever it is, so long as it is not wanton

interference, if the rescuer is killed or injured in the attempt, he can recover

57. In Alcock (at 402), Lord Oliver expressed the view that those who suffer psychiatric injury

in rescue cases fall into the primary victim category, as he defined it there. However, in

White (at 499), Lord Steyn stated that ‘in order to contain the concept of rescuer in

reasonable bounds for the purposes of the recovery of compensation for pure psychiatric

harm the plaintiff must at least satisfy the threshold requirement that he objectively

exposed himself to danger or reasonably believed that he was doing so.’ Lord Hoffman

expressed the view (at 509-510) that a rescuer can only recover for psychiatric injury if

that person comes within the range of foreseeable physical injury in giving assistance at

or after an accident or disaster. Hence, I understand that the defendants rely on these

authorities to argue that Ms Sheehan cannot satisfy the threshold requirement to succeed

58. The unsuccessful plaintiffs in Alcock were related to, or in a relationship with, various

deceased victims of the 1989 Hillsborough football stadium disaster and had either

witnessed the dreadful events from elsewhere in the stadium or followed the reports of

those events on radio or television. Their psychiatric injury claims failed on the basis that

they could not bring themselves within Lord Ackner’s three qualifying criteria for

secondary victims (the Alcock controlling mechanisms). The plaintiffs in White were

police officers who had been involved in the rescue effort in the immediate aftermath of

that disaster, although none of those officers had been, or had thought that he was, in

59. In assaying a test for liability for psychiatric injury to a rescuer, both Lord Steyn and Lord

Hoffman acknowledged the authority of the decision in Chadwick v British Railways Board

[1967] 1 WLR 912. Mr Chadwick lived close to the scene on the 1957 Lewisham rail

disaster in London and, immediately upon hearing of it, went directly there, where he

acted as a rescuer, bringing aid and comfort for many hours to persons trapped among

the wrecked train carriages. In an action brought after his death, Waller J found that his

estate was entitled to recover for the psychoneurosis he developed as a result of the

traumatic scenes he witnessed. Although the judgment of Waller J laid no emphasis on

the point, Lord Steyn was careful to note the reference in it to the clear element of

personal danger in what Mr Chadwick was doing (at 499). Lord Hoffman observed that

Lord Griffiths, who had been counsel for Mr Chadwick’s estate, had stated in the Court of

Appeal in McLoughlin v O’Brian [1981] 1 QB 599 (at 622) that Mr Chadwick might have

been injured by a wrecked carriage collapsing on him as he worked among the injured

and that a duty of care was owed to him as a rescuer in those circumstances (at 509).

60. Lord Steyn reasoned that, without the limitation that he had identified, ‘one would have

the unedifying spectacle that, while bereaved relatives are not allowed to recover as in

the Alcock case, ghoulishly curious spectators, who assisted in some peripheral way in the

aftermath of a disaster might recover’. I am not persuaded by that argument for two

reasons. First, I do not see how a ghoulishly curious spectator, who assisted only in some

peripheral way with a rescue, might properly be characterised as a rescuer, rather than as

a spectator or bystander. Second, I do apprehend an obvious injustice if that limitation is

applied to a rescuer who provides significant, perhaps vital, assistance to a disaster or

accident victim without being, or reasonably believing himself or herself to be, in

immediate physical danger, but who nonetheless suffers psychiatric injury, such as PTSD,

61. In Curran, already cited, Judge McMahon had this to say about the arguments advanced

by Lord Hoffman in support of the principle that that exposure to physical danger or the

rescuer’s reasonable belief of such exposure should be a condition precedent to the

recovery by that rescuer of damages for negligently inflicted psychiatric injury (at 360-1):

‘Lord Hoffman in White (with whom Lord Steyn agreed) in refusing to compensate

the policemen who sued their employers in that case gave two reasons for his

refusal. First, he said there would be a definitional problem if one was to recognise

them as rescuers: who else would fit into the definition of rescuer? This is hardly a

compelling reason for refusing recovery, and Lord Hoffman himself acknowledged

this as a ‘less important reason’ [at 510]. The law is continuously concerned with

definitional problems and it can hardly be advanced as a reason for not doing

justice. The second and more compelling reason he advanced for not treating

policemen as rescuers and allowing them to recover, was that to do so would be

unfair and would offend against the ‘notions of distributive justice’. ‘[The ordinary

person] would think it wrong that policemen, even as part of a general class of

persons who rendered assistance, should have the right to compensation’ for

psychiatric injury out of public funds while the bereaved relatives are sent away

with nothing’ [at 510]. This of course raised fundamental questions as to the

purpose of the tort system in general, but in the present context it should be noted

that such a distinction is not deemed offensive or objectionable per se, in our

jurisdiction, where the Garda Compensation Scheme accepts that gardaí injured in

the course of duty will get full compensation, whereas the ordinary citizen gets no

general damages for pain and suffering for criminally inflicted injuries. Perhaps the

Irish courts would see nothing wrong with allowing such policemen as were

involved in White recovery either as employees or rescuers and the policy reason

given by Lord Hoffman for refusing compensation would not appear to have the

62. I share Judge McMahon’s misgivings about the validity of Lord Hoffman’s reasoning, both

in general and more specifically in an Irish context. I am not persuaded by Lord

Hoffman’s invocation of Aristotle’s Nichomachean Ethics as justification for the result

arrived at in White. As explained in Freeman, Lloyd’s Introduction to Jurisprudence (9th

‘It is in discussions about the rationale of tort law that we see corrective justice

most clearly. Theories of distributive justice do not address the goals of tort law

adequately. Courts do not use the law of tort to correct distributive imbalances,

though they may sometimes appeal to considerations of distributive justice to

fortify conclusions reached by other routes. Even if they wanted to do so, they

would find distributive considerations inappropriate where the interests protected

63. If tort law were intended as an instrument of distributive justice, however imperfect, it

would not permit the existence of a control device such as the duty of care. Moreover, its

application as an instrument to that end would more obviously require the modification or

abolition of the Alcock control mechanisms than the adoption in White of a further

separate control mechanism in cases of psychiatric injury caused to rescuers. It may be

that Judge McMahon had considerations of this sort in mind in observing that Lord

Hoffman’s analysis raises fundamental questions about the purpose of the tort system in

64. Once again, I leave the last word on this point to the authors of Charlesworth & Percy on

‘A “danger” requirement seems appropriate if a rescuer is seeking to recover for

psychiatric injury suffered as a result of fear for his or her own safety. But if the

injury is caused by fear for and perception of physical suffering by others it does

indeed seem arbitrary, its sole purpose being to limit the ambit of liability. A

preferable approach might have been to move away from a rigid need to classify all

claimants as “primary” or “secondary”, but to identify deserving categories for

recovery independently of that division. Claims by rescuers, as one such category,

could be considered on their particular merits. This would be consistent with the

kind of approach favoured by the Law Commission [Liability for Psychiatric Illness,

65. Thus, were it necessary to do so, I would reject the argument that, for Ms Sheehan to

succeed in her claim as a rescuer, there is a threshold requirement that she objectively

exposed herself to danger or reasonably believed that she was doing so, or – differently

put – that it is necessary for her to establish that she came within the range of

foreseeable physical injury in giving assistance at the scene of the accident. But it is not

necessary for me to decide the point in the circumstances of the present case because, as

I have already indicated, I am satisfied that Ms Sheehan did expose herself to danger in

providing assistance at the scene of the crash on the dark roadway and that she came

within the range of foreseeable physical injury in doing so. As Douglas Brown J accepted

in Cullin v London Fire & Civil Defence Authority (1999) PIQR 314, in most instances the

danger to a rescuer will not be the same as the one that caused the accident or disaster

66. The defendants’ second argument is 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 the shock to the plaintiff arose from witnessing the defendant’s

67. That was the conclusion reached by Cazalet J in the High Court of England and Wales in

Greatorex v Greatorex [2000] 1 WLR 1970. The facts of that case were as follows. After

an evening spent drinking, the defendant and a friend set off in the friend’s car with the

defendant driving. While overtaking on a blind bend, the defendant crossed on to the

wrong side of the road and the car collided with an oncoming vehicle. The defendant was

badly injured and trapped in the car. The plaintiff, who was the defendant’s father, was

called to the scene as a fire officer, where he attended to his son. He later developed

long-term, severe PTSD as a result of those events. The defendant, his son, was

subsequently convicted of various road traffic offences, including driving without due care

68. Cazalet J accepted the argument that, not to exclude liability for psychiatric injury caused

to a plaintiff who witnesses a defendant’s self-inflicted physical injury, is to impose, in

effect, a duty upon individuals to look after themselves, thereby placing an undesirably

69. I have come to the conclusion that the decision in Greatorex, however persuasive it may

be in its own terms, is of no assistance in this case for four reasons: first, because it is

based on principles that our law does not recognise; second, because, it relies in

significant part on authority that – to put it no further - has since been doubted; third,

because it relies on a policy consideration that cannot apply on the facts of this case; and

fourth, because – if accepted – the principle it represents would be capable of working

unfairness and injustice incompatible with the fundamental norms of our legal system.

70. In the first part of his judgment in Greatorex, Cazalet J summarised the principles on

liability for psychiatric injury to rescuers that were developed by the House of Lords in

Alcock, Page and Frost/White, before concluding that, since there was no danger to the

plaintiff in attending at the scene, his claim based on his position as a rescuer must fail.

As I have already explained, I do not accept that, as a matter of law, those principles

apply in Ireland. Even if they did, the position in this case would be different because Ms

Sheehan did expose herself to danger in assisting at the scene of the crash or, differently

put, did come within the range of foreseeable physical injury in doing so.

71. In addressing the issue of the extent of the duty owed to others by the victim of a self-

inflicted injury, Cazalet J placed significant reliance on an obiter dictum of Deane J in the

High Court of Australia in Jaensch v Coffey (1984) 155 CLR 549 (at 609), to which

approving reference had been made by both Lord Ackner and Lord Oliver in Alcock, and

which appeared to be based, in turn, on an old dictum of Lord Robertson in the Scottish

case of Bourhill v Young’s Executor 1941 S.C. 395 (at 399). Cazalet J also noted that the

relevant statement had been followed by Vasta J in Queensland and Zeeman J in

Tasmania, in Harrison v State Government Insurance Office (1985) Aust. Torts Reports

80-723 and Klug v Motor Accident Insurance Board (1991) Aust. Torts Reports 81-134,

72. However, there is a compelling argument that Lord Robertson’s dictum was taken out of

context; see Butler, ‘Psychiatric Injury Resulting from a Tortfeasor’s Death, Injury or

Peril: Debunking an Unfortunate Dictum’ (1996) 26 Queensland Law Society Journal 557.

Moreover, in FAI General Insurance Co. Ltd v Lucre [2000] NSCWA 346 (November 29,

2000), the New South Wales Court of Appeal refused to accept that the common law was

as Deane J had suggested, relying on the decision of the South Australian Full Court in

Shipard v Motor Accidents Commission (1997) 70 S.A.S.R. 240, certain reservations

expressed by Zeeman J in Klug, and the further doubts of Green CJ in Churchill v Motor

Accidents Insurance Board (unrep., Supreme Court of Tasmania, December 2, 1993),

before rejecting the argument that the duty of care is negated simply because the

primary victim is the defendant or a deceased person being represented by the

73. These developments can be found summarised in Handford, ‘Psychiatric damage where

the defendant is the immediate victim’ (2001) 117 LQR 397. Although it is unnecessary

that I should express any concluded view on the question for the purpose of the present

judgment, it seems fair to say that there is, at the very least, significant doubt about the

extent to which the decision in Greatorex is solidly grounded in the common law.

74. In the absence of binding authority on the duty of care owed to others by a victim of self-

inflicted injury, Cazalet J turned to policy considerations (at 1983). Given that the

plaintiff and defendant in Greatorex were father and son and that, under the Alcock

control mechanisms applicable to secondary victims generally, it was necessary for all

such plaintiffs to establish, amongst other things, a close tie of love and affection with the

person injured, Cazalet J concluded that ‘[t]o allow a cause of action in this type of

situation is to open up the possibility of a particularly undesirable type of litigation within

the family, involving questions of relevant fault between its members’ (at 1985). I have

already concluded that the primary/secondary victim distinction and the Alcock control

mechanisms have no role to play in the application of the relevant tests under Kelly and

Glencar. Thus, the relevant policy consideration does not arise here as a matter of law.

Nor does it arise here as a matter of fact, since Ms Sheehan and the deceased driver were

strangers. And even if it did arise, litigation within the family is not uncommon, much

less considered contrary to public policy, in this jurisdiction where a plaintiff has suffered

physical injury in consequence of the negligence of another family member who is

75. In its report on Liability for Psychiatric Illness (Law Com. No. 249 (1998)), the Law

Commission for England and Wales considered the issue of recovery where the defendant

is the immediate victim, noting the self-determination argument later accepted by Cazalet

J, but balancing it with the conflicting view that persons who deliberately or negligently

place themselves in danger should foresee the possibility of the consequences of their

actions for others and take responsibility for them, which is the position where a person

negligently or deliberately injures or endangers himself, causing reasonably foreseeable

76. The England and Wales Law Commission recommended that, to the extent that the dicta

of Deane J in Jaensch and of Lord Robertson in Bourhill represented good law in England

and Wales, as Lord Oliver in Alcock suggested they did, then any such bar to recovery by

a plaintiff should be statutorily removed, subject to a discretion vested in the courts not

to impose a duty of care if satisfied (most obviously in cases of injury or death caused by

voluntary participation in dangerous sports or the deliberate infliction of self-harm) that it

would not be just or reasonable to do so because the defendant had chosen to cause his

own death, injury or imperilment. This was seen to represent the appropriate balance

between the right to recover damages where there has been a breach of the duty of care

and the individual’s right to self-determination. It seems to me that, even if it were

otherwise appropriate to apply an exclusion of liability of the type identified in Greatorex

(and I have already concluded that it is not), then the constitutional strictures under

which our courts necessarily and properly operate would only permit that to occur as the

result of the relevant rights-balancing exercise, rather than as the result of the application

77. Thus, I reject the argument that the duty of care to Ms Sheehan in this case is negated

simply because the primary victim, whose self-inflected injuries caused the shock that led

to Ms Sheehan’s psychiatric injury, is a deceased person represented by one of the

78. I find that the deceased driver in this case, represented by FBD, did owe Ms Sheehan a

duty of care not to cause her a reasonably foreseeable injury in the form of psychiatric

illness. I can identify no consideration of public policy that dictates otherwise. Further, I

conclude that it is just and reasonable that the law should impose that duty on FBD for

the benefit of Ms Sheehan. There is no dispute that Ms Sheehan’s satisfies each of the

other elements of the test to establish the defendants’ liability to her in negligence. Thus,

it follows that Ms Sheehan is entitled to recover damages from FBD to compensate her for

79. I must assess general damages in an amount that provides reasonable compensation for

the pain and suffering that Ms Sheehan has endured and will likely endure in the future;

Nolan v Wirenski [2016] 1 I.R. 461 (at 470). Further, as Irvine J explained in that case

‘Principle and authority require that awards of damages should be (i) fair to the

plaintiff and the defendant; (ii) objectively reasonable in light of the common good

and social conditions in the State; and (iii) proportionate within the scheme of

awards for personal injuries generally. This usually means locating the seriousness

of the case at an appropriate point somewhere on a scale which includes everything

80. Because of her experience on 28 January 2017, Ms Sheehan developed a moderately

severe post-traumatic stress disorder (‘PTSD’), consequent upon an acute stress reaction.

She was out of work for an initial period of five weeks and, intermittently, for short

periods thereafter, before leaving her job as a hairdresser in February 2019 on the basis

that she felt unable to continue. Her condition has placed great strain on her family

relationships, including her intimate relationship with her husband. She continues to

undergo therapy and counselling, and to take a range of medications. When assessed in

September 2019, she had still not yet recovered and the prognosis remained guarded.

Her own consultant psychiatrist is hopeful that, in time, she will make a full recovery,

subject to a twenty-five percent chance of further anxiety, depression or stress-related

81. I assess Ms Sheehan’s general damages in the sum of €65,000 to date and €20,000 into

the future, making a total of €85,000. Special damages are agreed in the sum of €2,238.

The total award is, therefore, €87,238.

Result: Judgment for the plaintiff in the sum of €87,238.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Sheehan v Bus Eireann/Irish Bus & Anor (Approved) [2020] IEHC 160 (03 April 2020) URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC160.html Cite as: [2020] IEHC 160

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