07 October 2015

On 29 September 2015, the Scottish Court of Appeal in the case of Martha Young v Arthur MacVean [2015] CSIH 70 reaffirmed the position on secondary victims as per the decision of the Supreme Court in, amongst others, the Hillsborough cases. Three judges in the Inner House agreed to overturn the decision of the court which had awarded the pursuer almost £250,000 in damages. BTO acted for the defender both at first instance and at the appeal. Two propositions were advanced. Firstly, that the judge at first instance had erred in law in holding that Mrs Young was a secondary victim and secondly that the award made for “loss of society” was excessive.

The Accident

The facts of the case are tragic. Mrs Young’s 26 year old son was killed on his way to the gym. A vehicle, driven by the defender, mounted the kerb and struck him. Mrs Young had arranged to meet her son at the gym and saw the damaged car. A key point is that at that stage, on seeing the scene of the accident, she did not know that her son had been involved. In fact, she felt relieved that her son could not drive and she knew that her daughter was at home. However, during her gym class, she realised that she had several missed calls from her daughter and she heard that a young boy had been killed outside the gym. When she realised her son had not arrived at the gym, she became increasingly hysterical most notably when the death was confirmed to her by police officers shortly afterwards.

The First Proposition

The law has long recognised that secondary victims are entitled to claim damages, but only if they are able to satisfy strict control measures. There is no doubt that the pursuer had a close tie of love and affection with her son or that she suffered a psychiatric injury, however, the appeal court drew a parallel between this case and the Hillsborough cases. In Hillsborough, relatives saw images which provided “…the matrix for imagined consequences giving rise to grave concern and worry, followed by a dawning consciousness over an extended period that the imagined consequence had occurred, finally confirmed by news of the death”. In this case, Mrs Young had an initial feeling of relief which later gave way to increasing concern and worry. She did not suffer “nervous shock” as a result of viewing the aftermath of the event in which her son was killed. The relevant injury to the secondary victim must be caused by shock as a result of what she perceived with her own senses. The injury cannot be as a result of being told about the death which is what happened here.

The issue of secondary victims has been the subject of much judicial scrutiny over the years. The distinctions are described as artificial or as Lord Steyn said in Frost “…a patchwork quilt of distinctions which are difficult to justify…” but the courts have taken the view that it is a matter for parliament to address if they choose to do so. The Scottish Law Commission actually rejected a proposal for reform in this area (see Civil Law of Damages: Issues in Personal Injury, December 2013).

The Second Proposition

Although the pursuer failed in her claim as a secondary victim, she is still entitled to an award for the distress, grief and loss of society suffered as a result of the death in terms of the Damages (Scotland) Act 2011. In England & Wales the figure for “bereavement” is a fixed statutory sum of £12,980. There has been much publicity about the high awards made in Scotland for what is essentially the same head of claim. Mrs Young was awarded £80,000, which we argued was excessive. The Opinion usefully reviews the authorities in this area and one gets the impression that had Lord Brodie been the judge at first instance a lower award would have been made.

Whilst the argument gave the judges “long pause for thought”, they were reluctant to interfere with the award made by the judge at first instance as he had had the benefit of hearing the evidence first hand. The appeal court acknowledged that “no sum of money can ever compensate for the death of a close relative”. They also acknowledged that each case is fact sensitive and they sought to distinguish the award to Mrs Young in that the loss of the deceased had a “special significance” due to the fact that she had also suffered the untimely loss of her husband in a helicopter crash in the North Sea. The appeal court also referred to the “upward pull of jury awards” and it is worth remembering that in Scotland, civil damages can be assessed by a judge or by a jury.

The Findings – Where now?

If left to stand, the findings of the judge at first instance threatened to erode the long standing principals in relation to the law on secondary victims. This is clearly not the court’s intention when one looks at what has been said by the Supreme Court previously. The decision of the appeal court has reaffirmed the position and should, for now at least, avoid the floodgates being opened in other cases of this type. Regarding the quantification of damages in Scottish fatal claims, that very much remains a moving feast.

The full opinion can be found here:-

https://www.scotcourts.gov.uk/search-judgments/judgment?id=74a0eea6-8980-69d2-b500-ff0000d74aa7

Catherine Currie, Partner & Solicitor Advocate, E: ccr@bto.co.uk / T:0141 221 8012