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The United Kingdom and Ireland: Nervous Shock and Public Policy
THE UNITED KINGDOM AND IRELAND: NERVOUS SHOCK AND PUBLIC POLICY
Ayah Abubakar
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The United Kingdom has exercised a far more restrictive approach than Ireland towards the recovery of damages for nervous shock claims. Both jurisdictions have noted various public policy considerations in applying their respective approaches. The English courts have considered matters such as the ‘self-determination’ and ‘personal liberty’ of the tortfeasor, whereas the Irish courts have disapproved of such policies in favour of an approach which ensures a fair outcome for all parties involved.
The most obvious distinction between the approaches taken by both courts is the categorization of primary and secondary victims. The English courts first categorised victims in White v Chief Constable of Yorkshire, 1 defining a primary victim as one who is directly involved in an accident, exposed to physical injury, or is at risk of physical injury, and a secondary victim as a bystander to the accident.2 Secondary victims, in addition to proving close proximity to the defendant and reasonable foreseeability of the injury, must prove spatial and temporal proximity to the accident.3
By contrast, the Irish test to recover for psychiatric injury was set out in Kelly v Hennessy4 and does not adopt the categorization of victims. Instead, a plaintiff must establish that he or she actually suffered a recognisable psychiatric illness; that such illness was shock-induced; that the nervous shock was caused by the defendant's act or omission; that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff and that the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general.5
The Irish courts have extended recovery to where the shock to the plaintiff arose from witnessing the defendant’s self-inflicted injury, expressing that to do otherwise would
1 [1998] UKHL J1203-4, [1999] 2 AC 455. 2 Curran v Cadbury Ireland Ltd 2000 WJSC-CC 7070, [2000] 2 ILRM 343, 359-360 (McMahon J). 3 ibid. 4 [1995] IESC 8, [1995] 3 IR 253. 5 ibid [5] (Hamilton CJ).
be contrary to citizens’ rights under the Irish Constitution.6 The English courts focused on limiting the degree to which one’s duty of care could extend.7 By contrast the Irish approach exercised greater leniency to encompass a wider scope for arising duties of care.8 The English approach in cases where the defendant is the primary victim shows room for potential unfairness in particular scenarios, whereas the Irish approach, it is submitted, leaves the courts potentially exposed to floodgates of cases.
The English approach to recovery for psychiatric injury by the plaintiff in cases where the immediate victim is the defendant initially appeared in Alcock v Chief Constable of South Yorkshire Police.9 In this case, Lord Keith established that there was no recent authority which allowed for liability arising on an injured defendant’s behalf where their injury was self-inflicted. This applies even where the psychiatric injury sustained is reasonably foreseeable.10 The court was of the view that a limit ‘to [a] some reasonable point’ was necessary to narrow the scope of the duty owed to third parties.11 It was viewed as essential in curtailing the extent to which a negligent act could stem liability. Additionally, allowing for the recovery of damages in cases where nervous shock is induced by the self-inflicted injury of the tortfeasor imposes a requirement that goes against public interest. It gives rise to an obligation not to cause self-harm carelessly or intentionally, such to avoid breaching a duty of care not to cause psychiatric injury to some third party.12 Moreover, there exists the right to ‘self-determination’13, which is arguably impinged if such an obligation were to exist. This argument was explored by Cazalet J in Greatorex v Greatorex14 where it was decided that the right to selfdetermination and the impingement on personal liberty outweighed the arguments in favour of a duty arising from a defendant whose injury is self-inflicted.15
By contrast, Ireland’s approach to recovery in cases where the immediate victim is the defendant takes a broader stance. In Sheehan v Bus Eireann16 Keane J described the rule
6 Sheehan v Bus Eireann [2020] IEHC 160, [2020] 4 JIC 0304 [76-77] (Keane J). 7 [1991] UKHL 5, [1992] 1 AC 310 [24] (Lord Keith). 8 Sheehan v Bus Eireann (n 6). 9 [1991] UKHL 5, [1992] 1 AC 310. 10 ibid [24] (Lord Keith). 11 ibid. 12 Law Commission, Consultation Paper on Liability for Psychiatric Illness (Law Com No 137, 1995), 36. 13 Greatorex v Greatorex [2000] 1 WLR 1970 (HC) 73 (Cazalet J) 14 ibid. 15 ibid [88] (Cazalet J). 16 Sheehan v Bus Eireann (n 6).
in Greatorex as an ‘inflexible, one-sided rule’ which was inconsistent with the ‘constitutional structures’ which ‘necessarily and properly’ direct the court’s decisions and operation.17 The learned judge then introduced two competing public policy considerations; namely the right to self-determination and the expectation that persons who situate themselves in dangerous scenarios should reasonably foresee the potential physical or psychiatric harm that the consequences of their actions could cause to others.18 Opposing the decision in Alcock, he rejected the argument that it would be unjust to impose liability where the defendant is the victim of a self-inflicted imperilment. This policy consideration bore the potential of generating ‘unfairness and injustice’ which Keane J considered ‘incompatible’ with the fundamentals of the Irish legal system. 19
The decisions in Greatorex and Sheehan have both merits and faults. The rule in Greatorex may pose an issue where the injury caused to the primary victim, the defendant, is not self-inflicted, but caused by a third party. If, according to Greatorex, one does not owe a duty of care to others not to inflict injury on oneself, then it could be concluded that in cases where a third party inflicts an injury on the defendant primary victim, then that primary victim may be held in joint liability with the third party.20 This conclusion is contrary to ‘self-determination’ and ‘personal liberty’. Thus in such a case where the primary victim bears a ‘causal contribution’ to the injury, the primary victim may retain immunity against a claim from the plaintiff for two reasons; firstly, the victim’s right to self-determination and personal liberty, and secondly, the victim’s relation to the plaintiff.21 This approach embodies the approach of the civil German courts and is contrary to the common law’s general rules as regards joint tortfeasors.22 It also produces an undesirable result where the primary victim is the main causal contributor to an accident, but the third party, being the one who has caused injury to the primary victim, cannot claim joint liability against the primary victim.23 This is an unjust approach, particularly in cases where full liability is imposed on a third party
17 ibid. 18 ibid [75]. 19 ibid [69]. 20 Basil Markesinis, ‘Foreign Law Inspiring National Law. Lessons From Greatorex v Greatorex’ (2002) 61(2) Cambridge Law Journal 386, 393. 21 ibid. 22 ibid. 23 ibid, 394.
who’s contribution to an accident, although evident, may not have been as great in fault as that of the primary victim’s.24
While the Irish approach in this regard may be commended for its relaxed nature, the approach in Greatorex is more desirable as it limits the extent to which one owes a duty of care. The Irish rationale appears to expect the tortfeasor to realise that placing themselves in a dangerous situation could impose on them a duty of care. It is submitted that widening the scope of liability to this extent places the Irish courts at risk of floodgates and a wider series of claims which may have to be dealt with on a case-bycase basis. Moreover, the English approach may be better applied if relaxed to a court discretion not to impose a duty on the defendant's primary victim, where it appears unjust or unreasonable to do so, rather than an outright ban on imposing such duty.25
The Irish and English courts have also taken different approaches towards nervous shock claims within the family. In Greatorex, Cazalet J contended that litigation within the family would give rise to a generally undesirable situation,26 which could produce ‘acute family strife’.27 This approach suggests that where the defendant primary victim is related to the plaintiff, the plaintiff cannot recover anything at all even where the defendant is the sole tortfeasor for the accident, thus granting the defendant ‘family immunity.’ 28 In cases where a third party causes injury to the defendant primary victim, the family immunity approach acts contrary to the common law approach which holds joint tortfeasors liable for the whole extent of the harm caused to the plaintiff.29 ‘Family immunity’ in such cases places the entire liability on the third party, even where the primary victim is a joint tortfeasor, giving rise to unfair outcomes where the third party has to carry the entire loss.30 Keane J in Sheehan discarded the litigation within the family argument because the policy did not ‘arise as a matter of law’ in Ireland, and litigation within the family was not contrary to public policy. 31 This approach is more consistent with the common law rules applied to joint tortfeasors and avoids any potential unfairness which may arise from cases involving third parties.
24 ibid. 25 Brenda Barrett, ‘Policy Issues Concerning Compensation for Psychiatric Injury’ (2001) 30 Industrial Law Journal 110, 112. 26 Greatorex v Greatorex (n 13). 27 Barrett (n 25) 111. 28 Markesinis (n 20). 29 ibid. 30 ibid. 31 Sheehan v Bus Eireann (n 6).
Overall, the English courts with respect to nervous shock claims have exercised a strict approach which allows policies such as ‘self-determination’, ‘personal liberty’, and ‘family immunity’ to flourish at the expense of fairness for defendant third parties and claimants. The Irish courts have exhibited a flexible leniency which considers the importance of ensuring a just outcome for all parties involved.
