Divergence On The Proximity Test For "Nervous Shock"' Will It Last?

• Author: Mr Padraic Brennan and Thomas McInerney
• Law Firm: RDJ LLP
• Published date: 25 January 2023

In 2022, the Court of Appeal in Sheehan v Bus Éireann¹ delivered a helpful judgment re-stating the criteria for plaintiffs bringing claims for nervous shock. The Court affirmed the High Court judgment awarding damages to a woman who had come across the body of a driver at the scene of an accident between a car and a bus. The car she was driving was struck by debris from the crash.

Mr Justice Noonan noted that Irish law, "at least to date",²gives no consideration to any criteria which differentiates between victims of a primary or secondary nature. He added that even if the distinction was recognised in this jurisdiction, this Plaintiff would have recovered as a primary victim due to her collision with debris, which put her at risk of physical injury.

Primary and secondary victims

The position in England and Wales: -

Primary victims are those individuals who are involved in, and directly affected by, the incident in question. Secondary victims are those who come upon the scene after the incident has occurred. The leading UK decision arose out of the Hillsborough Disaster which held that a claimant who is a secondary victim must perceive the event with her/his own unaided senses or view the "immediate aftermath" in order to recover. The House of Lords therein established a requirement of close physical proximity to the shocking event for nervous shock plaintiffs to succeed and the UK courts continue to interpret the law in this manner.³

Irish Position: -

The proximity test in this jurisdiction goes back some 20 years and was developed in the oft-cited and studied judgments of Glencar⁴ and Fletcher⁵. Crucially, the courts here have maintained the position that no distinction will be drawn between primary and secondary victims who suffer a recognised psychiatric illness by reason of actual or apprehended physical injury.

The foundations of "nervous shock" claims in this jurisdiction remain the principles laid out by the Supreme Court in Kelly v Hennessy⁶: -

1. A recognised psychiatric illness was suffered.
2. The injury was shock induced.
3. The injury was caused by the Defendant's negligence.
4. There was an actual or apprehended physical injury to the Plaintiff or another person.
5. There was a duty of care not to cause a reasonably foreseeable psychiatric injury.

Regarding the question of proximity, the Supreme Court set out several features which may be relevant to this consideration, although not stating that this list was to be considered finite: -

1. Proximity of...