A mother came across the scene of a car accident, and later discovered the accident involved her son. Could she recover damages for nervous shock as a "secondary victim", significantly inflating her award? Martha Sarah Young v Arthur Macvean [2015] CSIH 70
The Issue
Regular readers will recall the earlier decision in this tragic case when the court ruled that Mrs Young could recover damages as a result of being a secondary victim, after happening across the aftermath of a car accident in which her son was killed.
Mr Macvean appealed on the basis that Mrs Young had wrongly been categorised as a secondary victim as the evidence indicated she had not been aware of her son being involved in the accident until she was advised later.
The Facts
Mrs Young was not a stranger to tragedy in her life. When she was twenty-one, her father had died of a sudden stroke. In 1992, her husband had died in a North Sea Helicopter accident. She told the court that before her husband had left for that job, he had reminded the then young David to look after his mother and sister while he was gone.
These tragedies had brought her and her son very close. David was, she said, "a model son" whom she saw nearly every day, and who was always trying to help her.
Rather unusually, on 1 June 2010, she and David had not seen one another for a few days, but had arranged to meet at their local gym in Glasgow. On the way there, she came across a horrific accident in which a car had been crumpled into a tree. She began thinking of the families of those involved and was relieved that her children could not be involved as David did not drive and her daughter was at home.
However, over the course of the morning, when David did not arrive at the gym, she became very anxious. She was eventually told by police that David had been killed in the accident when Mr Macvean's car had left the road and struck him.
The earlier decision held Mrs Young was a secondary victim. She had witnessed the immediate aftermath of the accident, and over a short period thereafter, a sense of dread had developed that her son was involved. This was then confirmed shortly after by the police.
Mr Macvean argued that her shock was caused not by witnessing the accident or its immediate aftermath, but by being told about the death. She did not realise at the time of seeing the wreckage that her son was involved; rather, she had been relieved to think her children could not be involved.
The line of authority established by Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, Frost (White) v Chief Constable of South Yorkshire Police [1999] 2 AC 455, and followed more recently in Taylor v A Novo (UK) Ltd [2014] QB 150 was clear.
It was accepted in those cases that the categorisation of who was and who was not a secondary victim was by its very nature a somewhat arbitrary exercise, but set out "strict control mechanisms" for establishing who falls into the category. While Mrs Young's case evoked sympathy, she fell outwith the category. She was too remote to be a secondary victim, the shock not having been caused by the trauma of witnessing the aftermath of the accident.
Mrs Young argued that the judge had not erred in categorising her as a secondary victim. This was not a case where she had viewed the accident scene and thought nothing more of it. She immediately had concerns. As the psychiatric expert had told the court, Mrs Young's experience over a short period that morning had been "ghastly". Her shock had been caused by her involvement in the immediate aftermath of the accident.
The decision
The appeal court ruled in favour of Mr Macvean.
While they accepted that Mrs Young's experience over a short period was "ghastly", it "did not involve the sudden appreciation by direct sight or sound of a horrifying event or of direct sight or sound of the horrifying immediate aftermath of such an event."
Mrs Young was unaware of the connection to her son when she saw the crumpled vehicle. It was only with hindsight after being told of his death that she linked the two.
What was needed for a claim to arise was "the highly particular circumstances where the illness is the result of a direct perception of the distressing phenomenon." That had not occurred here.
There was also a separate appeal point relating to the award of £80,000 for loss of society. The court found that this was not excessive – somewhat surprising, as in another recent appeal in the case of Currie v Esure Services Limited, a significantly lower award of £42,000 was not viewed as inadequate.
Our view
As was accepted by Lord Steyn in Frost, the categorisation of who and who is not a secondary victim is an arbitrary one, which can sometimes appear to defy logic. However, the policy reasons behind this approach are clear. To step away from the strict control measures would potentially open the floodgates.
However, it remains to be seen whether this matter may be appealed to the Supreme Court in order to challenge that policy.
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