Secondary Victims

On 29 September 2015 the Inner House of the Court of Session (Scottish Appeal Court) issued its Decision in the case of Young v Macvean 2015 CSIH 70.

The Appeal Court overturned the Decision at first instance to the effect that Mrs Young fell into the category of secondary victims.

David Young was a pedestrian aged 26 who was struck and killed by a car driven by the Defender which mounted a pavement.  The Defender was ultimately convicted of a contravention of the Road Traffic Act 1988, Section 1.

At the original Proof liability was admitted and there were two points at issue (1) whether Mrs Young was a secondary victim entitled to make a claim as an individual and recover for personal injury (psychological), loss of earnings and services and (2) the appropriate damages figure for loss of society, etc in respect of the death of her son.

At the time of his death David Young had been on his way to a gym.  The Pursuer had arranged to meet him at the gym.  On her way there she saw the damaged car and an obvious accident.  At that time however she did not know the accident involved her son.  The Court noted that she had actually felt relieved because her son could not drive and her daughter was at home.

At the gym she discovered missed calls on her phone from her daughter and discovered that the accident had involved a young boy.  She became very agitated and indeed hysterical.

It was maintained on behalf of Mrs Young that she was a secondary victim.  At first instance the Court held that Mrs Young’s psychological injury related not just to being told about her son’s death but to her experience at the accident scene.  It was said it would be “wholly artificial” to separate these two aspects and that she was a secondary victim when considering the conditions set down in Alcock.

Alcock v Chief Constable of South Yorkshire Police (the Hillsborough football tragedy) set out that there were three criteria which had to be met for a person to be a secondary victim:-

  1. That the psychiatric injury was caused by “shock” from “the sudden appreciation by sight or by sound of a horrifying event, which violently agitates the mind”.
  2. That the person concerned had a close tie of love and affection with the victim.
  3. That the person had to be sufficiently proximate in time and space to the event ie, that they had actually seen it or arrived in the “immediate aftermath”.

Mrs Young was initially relieved that neither of her children could have been in the accident.  As information became available at the gym, she became increasingly upset and hysterical.

The Appeal Court took the view that Mrs Young didn’t suffer “nervous shock” as a result of seeing the aftermath of the accident.  Her psychological injury, if to give rise to a claim, could not be a result of being told about her son’s death which was what had happened in this particular case.

The Appeal Court said that the existence of Mrs Young’s psychiatric illness did not assist in satisfying the “control mechanism”.  It went on to say “A claim will arise only in the highly particular circumstances where the illness is the result of direct perception of the distressing phenomenon.  On the evidence as narrated by the Lord Ordinary, that did not occur here.  The Pursuer was not a secondary victim and accordingly is not entitled to damages in respect of her psychiatric illness.”

The Appeal Court also dealt with the question of the loss of society, etc award made to Mrs Young in terms of the Damages (Scotland) Act 2011.  She had been awarded £80,000 and the Defender argued that sum was excessive.

The Decision reviews various Authorities and the Appeal Court said that although the position gave them “long pause for thought”, they were reluctant to interfere with the award because the Court at first instance had heard the evidence first hand.  They went on to comment that each case was fact sensitive and in this particular case the death of her son had for Mrs Young a “special significance”.  She had suffered a previous loss when her husband had been killed in a North Sea helicopter crash.  There was also mention of what was described as the “upward pull of jury awards”.

Summary

The Decision at first instance clearly extended the secondary victim category beyond the Alcock criteria but the Appeal Court Decision reaffirms the position in Scotland as being based on these criteria.

So far as the loss of society, etc award of £80,000 is concerned, the unsuccessful appeal demonstrates the difficulty in successfully challenging loss of society etc awards – even against a background in this case where there was an argument that the circumstances should have been compared with a previous award of £42,000.  “Long pause for thought” obviously wasn’t long enough!

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