The Court of Appeal has dismissed an appeal by the representative of a driver killed in a 2017 collision, upholding a finding that he owed a duty of care to a woman who suffered psychiatric injury after debris from the crash struck her car.
The court said the woman was within the area of risk of physical injury and was properly regarded as involved in the accident. It therefore found that the duty of care requirement for her claim was met. The appeal concerned liability only; the damages awarded by the High Court were not contested.
The collision happened on the N72 near Mallow, Co Cork, on the evening of 28 January 2017. A car travelling west collided head-on with a bus travelling in the opposite direction. The car’s driver, John O’Connor, died. The judgment said his negligence was solely responsible for the collision. Proceedings against Bus Éireann/Irish Bus had been discontinued.
The woman was driving behind the car on her way home from work. She did not see the collision, but debris struck her vehicle, damaging its front bumper and causing her to stop. She went to the wrecked car and saw what she initially thought was the body of a child. It was O’Connor, who had been propelled to the back of the car. She called emergency services and searched nearby for other possible victims. The judgment records that she suffered psychiatric injury as a result.
The appeal argued that she was a “secondary victim” who could not recover because she had no close relationship with the deceased, and that Irish law should bar recovery where psychiatric injury resulted from witnessing injuries caused by the primary victim’s own negligence.
Giving judgment, Mr Justice Noonan said the English distinction between primary and secondary victims, and its associated control mechanisms, had not been adopted in Irish law. He said the claim should be assessed by considering reasonable foreseeability, proximity and whether imposing a duty of care was just and reasonable. Even if the distinction applied, he said, the woman was a primary victim because debris hit her car and placed her within the area of risk of physical injury.
The court did not decide whether a rescuer must face physical danger to recover for psychiatric injury. Nor did it reach a concluded view on whether Irish law should adopt the policy argument based on the English High Court decision in Greatorex. It said that argument would not affect this case because the woman was a primary victim under the alternative analysis.
The appeal was dismissed. The court’s provisional view was that the woman should receive her appeal costs, while allowing the defendant 14 days to seek a different costs order and a short further hearing.