Divergence on the proximity test for “nervous shock”– will it last?
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In 2022, the Court of Appeal in Sheehan v Bus Éireann 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”,gives 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.
Irish Position: -
The proximity test in this jurisdiction goes back some 20 years and was developed in the oft-cited and studied judgments of Glencar and Fletcher. 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 Hennessy: -
- A recognised psychiatric illness was suffered.
- The injury was shock induced.
- The injury was caused by the Defendant’s negligence.
- There was an actual or apprehended physical injury to the Plaintiff or another person.
- 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: -
- Proximity of relationships.
- Spatial proximity.
- Temporal proximity.
As stated, the law concerning a victim’s relationship to the injured (or the person to whom injury is apprehended) has been considered and developed somewhat since Kelly in cases such as Glencar and Fletcher.
Different reasoning in the UK, however, has led to very different and more onerous criteria for plaintiffs in these cases.
Decision of the Court of Appeal of England and Wales
2022 saw a three-judge UK Court of Appeal tentatively follow the precedents, going back to Alcock, by which it deemed it was bound. In the primary written judgment, Sir Geoffrey Vos, MOR, expressed unease at the hurdles faced by secondary victims seeking to make a claim for nervous shock. He stated:
“Looking at the matter without regard to the authorities, it is hard to see why the gap in time (short or long) between the negligence (whether misdiagnosis or door design) and the horrific event caused by it should affect the defendant’s liability to a close relative witnessing the primary victim’s death or injury that caused it.”
This was a decision in respect of three appeals; each involving an alleged failure to diagnose the primary victim’s life-threatening condition. In each case, the close relatives suffered psychiatric injury as a result of the shocking incident. Paul and Polmear were appeals by the Defendants, whereas Purchase was an appeal by the Claimant. In both Paul and Polmear the close relatives witnessed the death and these appeals were allowed. In Purchase, the close relative happened upon the primary victim immediately following death, and this appeal was dismissed.
The Court of Appeal felt obliged to follow the legal reasoning in another Court of Appeal decision of Taylor v A. Novo. In that case, the Plaintiff’s mother injured her foot in a work accident and her employer admitted negligence. She died in front of her daughter three weeks later due to a pulmonary embolus. Lord Dyson summarised the facts as amounting to a single event (the falling of racking boards on the Plaintiff’s mother) which had two consequences (the initial injuries and the subsequent death). He held that had the Plaintiff suffered psychiatric injuries as a result of seeing the accident and the injuries sustained by her mother, she would have qualified as a secondary victim, but that she did not qualify on the facts.
Sir Geoffrey Vos, MOR, in Paul, seeking to extract the ratio of the Novo decision, believed that there could be no liability for psychiatric injury to the claimant caused by witnessing her husband’s death long after the negligence which caused it (in Novo three weeks had passed). He stated that he had reservations about the Novo judgment and expressed a desire to move away from such a restrictive test for these plaintiffs. However, he believed he was bound by Novo as it had been decided after full argument of the preceding cases, stemming from the House of Lords decision in Alcock, and he could identify no misinterpretation in its reasoning.
Lord Justice Underhill, agreeing with the leading judgment in Paul, stated: “if the point were free from authority I would be minded to hold that on the pleaded facts the Claimants in all three cases should be entitled to recover.”
The status of Supreme Court precedents
It is only in very exceptional cases, and with compelling reasons for doing so, that the Supreme Courts of Ireland or the UK will consider departing from their own decisions; it is a power reserved only for the highest court. Previously, the position had been that the highest court was bound by its own decisions, however erroneous or unjust. In 1966, the House of Lords delivered a Practice Statement to the effect that it would depart from its own precedents in order to achieve justice. This remains the established jurisprudence of the UK Supreme Court, although rarely occurring in practice.
Four years before the UK court’s Practice Statement, and ten years before his appointment to the Supreme Court, the late Mr Justice Séamus Henchy wrote that there had not, at that time, been a decision of the Irish Supreme Court indicating the extent to which it would consider reviewing its own decisions. Henchy opined that a rigid doctrine of stare decisis does not guarantee predictability of judicial decision-making. He added:
“Examples are not wanting to show that if a court disapproves of an earlier decision it may narrow its application or, in certain cases, distinguish itself out of existence.”
Henchy called for flexibility to keep up with a fast-changing society. Shortly after the House of Lords’ Practice Statement, the once permanent nature of Supreme Court decisions was replaced by an element of flexibility.
We saw an example of such flexibility in 2015 in the case of DPP v JC, in which the Supreme Court made a significant revision to the “exclusionary rule” in relation to unconstitutionally obtained evidence, which had been developed by the Supreme Court fifteen years earlier in DPP v Kenny. O’Donnell J was satisfied that the decision in Kenny was wrong in principle. He stated: “I do not doubt the possibility of judicial error from a misguided approach to the law, an occasional lapse of judgment, or a lack of sufficient robustness, but I do not think that such frailty is limited to trial courts… The remedy for judicial error is the same in this field as elsewhere: a requirement that judges give reasoned rulings on issues, with the possibility of review and appeal.” 
It is difficult to reconcile the contrasting approaches in Ireland and the UK in interpreting the concept of proximity in claims for “nervous shock”.
The Paul decision shows a willingness at the level of the UK Court of Appeal to move away from the restrictive approach for plaintiffs in these cases. However, none of the three judges were willing to diverge from an earlier Court of Appeal decision with which they could find no legal fault, instead expressing unease with the approach and stating that the issues merit Supreme Court consideration.
In Sheehan, Mr Justice Noonan’s comment that our position still holds “at least to date” might suggest that the formal approach in this jurisdiction is not set in stone. In a world where shocking events can be broadcast live to a global audience, court decisions on the entitlement to damages of certain victims can potentially be of major importance and are of increasingly frequent relevance. Mr Justice Noonan noted in his judgment the significant challenges that advances in technology pose in this area of law.
For now, Kelly v Hennessy is the settled Irish authority and there will be no distinction made between primary and secondary victims. That will remain so unless the Supreme Court revises the test it has set itself; a power which is seldom exercised.
If called upon to do so, the UK Supreme Court will face similar considerations in light of the judgment in Alcock, along with the line of subsequent Court of Appeal authorities interpreting the House of Lords. Paul shows a desire, from some of the UK judiciary at least, to align with the Irish authorities and to move away from a restrictive test for plaintiffs. Such a test appears increasingly difficult to justify the more judicial scrutiny it faces.
 Lisa Sheehan v Bus Éireann/Irish Bus and Vincent Dower  IECA 28.
 ibid para. 68.
 Alcock v Chief Constable of South Yorkshire Police  1 AC 310.
 Glencar Exploration plc v. Mayo County Counsel (No.2)  IR 84.
 Fletcher v Commissioners of Public Works  1 IR 465.
  IESC 8.
 Paul (a child by her mother and litigation friend) v The Royal Wolverhampton NHS Trust; Polmear v Royal Cornwall Hospital NHS Trust; Purchase v Ahmed  EWCA Civ 12.
 Taylor v A. Novo (UK) Limited  EWCA Civ 194.
 ibid para.93.
 London Street Tramways v London County Council  AC 375.
 The Practice Statement  3 All ER 77.
 Séamus Henchy, Precedent in the Irish Supreme Court, Modern Law Review, Volume 25 Issue 5, September 1962.
 ibid 15.
  IESC 31.
  2 IR 110.
 ibid para. 98.