On 16 December 2020, Martin Spencer J handed down judgment in Young v Downey  EWHC 3457 (QB), an interesting decision on secondary victims in nervous shock cases. In this blog post, Philip Turton and Katie McFarlane summarise and review the decision, which can be read here.
Where a person suffers psychiatric as well as physical injury in an accident, and even where they are involved in an accident but suffer only psychiatric injury, they are able to recover damages for the psychiatric injury suffered and its consequences as a ‘primary victim’: see Page v Smith (No. 1)  AC 155. Where a person is not involved in an accident and suffers psychiatric harm only as a result of observing traumatic events which injure others, the law has tightly controlled any right of recovery, in a line of authority dating back to Bourhill v Young  AC 92. In general terms the law does not permit recovery by persons affected by injury to a primary victim save by way of exception. These are secondary victims, subject to control mechanisms limiting the class of persons who can recover damages. In McLoughlin v O’Brian  1 AC 410, the law required there to be close family ties between the secondary and primary victim and, in addition, close proximity “in both time and space”. The facts of McLoughlin permitted recovery where a Claimant wife and mother had encountered the aftermath of a road traffic accident in which her husband and children had suffered grievous and fatal injury.
The issue was revisited as a result of the Hillsborough tragedy in Alcock v Chief Constable of South Yorkshire Police  AC 310, where Bill Woodward QC and Patrick Limb of Ropewalk Chambers represented the successful Defendant before the House of Lords. That decision diluted, to a limited extent, the rigid nature of the family ties – evidence might establish the relationship rather than the mere fact of being a parent or husband – but maintained the essential criteria:
- there had to be a close tie of love and affection between the Claimant and the primary victim;
- the Claimant must have been close to the incident or its aftermath in time and space;
- the Claimant must have directly perceived the incident rather than hearing about it from a third person or through a medium such as the television; and
- the Claimant’s psychological injury must have been induced by a sudden shocking event.
These considerations were before Martin Spencer J in Young, where he had to consider to what extent the Claimant, a child, had herself perceived the risk or fact of injury to the victim, her father.
The adult Claimant was a child of 4 when, on 20 July 1982, her father, a member of the Household Cavalry, was killed by a bomb placed in Hyde Park by an IRA gang in which the Defendant was an active participant. From the nursery window of the barracks she had watched her father leave for ceremonial duties, heard the explosion and saw the aftermath, including soldiers returning to the barracks covered with blood and embedded with nails. Understandably the Claimant’s evidence was that she remembered the incident clearly and she alleged that she had suffered severe psychiatric illness, which had plagued her throughout her life, as a result. She had a troubled childhood, was diagnosed with post-traumatic stress disorder in 1997 and was significantly impaired until EMDR treatment in 2002. She continued to present as anxious and depressed when interviewed by a psychiatrist in 2020 for the purposes of her claim.
Relying upon supportive psychiatric evidence the Claimant submitted that the four criteria in Alcock were met.
In Alcock, Lord Ackner had referred to “sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind”. The issue which arose was whether it was necessary for the Claimant, as a secondary victim, to have appreciated at the time that it was her father that had been involved in the incident she had heard.
In contrast to the Claimant in McLoughlin, the Judge felt that the Claimant, as a child, had a naturally more limited appreciation of what had occurred. Placing weight on a comment made later in the day – “Daddy should be coming home now” – Martin Spencer J held that the Claimant, at the time, lacked appreciation of any risk or injury to her father connected to what she had witnessed. In those circumstances he found an essential element of causation to be missing. Taylor v A Novo (UK) Ltd  QB 150 was considered, in which the relevant “event” was held to be the incident giving rise to the harm to the primary victim and not her death. Unlike Taylor, the Claimant was not able to demonstrate a contemporaneous perception of the involvement of her father in what she had heard and seen, which was regarded as an essential control mechanism.
The claim for psychiatric injury was thus dismissed.
A claim for exemplary damages, sought on the basis of a terrorist attack, was also rejected. Ms Young’s claim did not fall within the categories recognised by Lord Devlin in Rookes v Barnard  AC 1129. Even if the case was appropriate for the extension of categories for recovery for exemplary damages, such an extension was a matter for Parliament or the Supreme Court.
Damages were awarded upon a conventional basis under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.
Recovery of damages by a secondary victim remains tightly controlled. Whilst the starting point remains the decision in Alcock, the approach taken by HHJ Halbert in Taylor is instructive for practitioners. In that case the Judge identified seven requirements, each of which had to be fulfilled before a secondary victim could recover damages:
- that the injury was foreseeable;
- that the Claimant was a close relative of or had a close emotional relationship with the primary victim.
- that the Claimant had suffered a recognised psychiatric injury;
- the psychiatric injury had been caused by the actions of the Defendant;
- the psychiatric injury arose by reason of “shock” brought about as a result of a sudden perception of the death of or risk to or injury to the primary victim;
- the Claimant was either present at the scene of the accident or was involved in its immediate aftermath (physical and temporal proximity being requirements); and
- the Claimant must have perceived the death or risk of injury by means of her own senses, rather than through communication by a third party.
The position of a child in this situation has not been before the Court previously. Applying existing legal principles, it seems right that a secondary victim must establish a subjective awareness that the primary victim, to whom they had a close tie of love and affection, was directly at risk as a result of the injurious event. It is perhaps the application of this principle to the facts which is particularly interesting. The psychiatric evidence in this case sought to suggest that the Claimant had indeed perceived a risk to her father at the time but the Judge was not persuaded.
The Judge interpreted the Claimant’s later remark to the nursery nurse (“Daddy should be coming home now”), as an indication that it had not occurred to her that her father might have been injured or killed or involved in what she had heard and seen, so the effect of what she had witnessed was not enhanced or accentuated by reason of her close relationship with one of the victims. Had the Claimant’s remark been to question whether her father was coming home, that might have indicated some anxiety on her part; on the contrary, none was implicit in the comment that she actually made and which the Judge interpreted as a literal expression of expectation that her father was coming back. The application of the law to the facts on this issue seems therefore to have turned on a narrow interpretation of a comment by a child and what that demonstrated in terms of subjective awareness. The Judge found that a 4½ year old would not have had the necessary understanding or development of mind to associate what she had witnessed with danger to her father, notwithstanding the psychiatrist’s contrary opinion.
In those circumstances the Claimant stood in a position which was no different to any other child in the nursery (or, indeed, to Mrs Bourhill, in her case). She had simply heard an explosion and seen its aftermath. Personally, she neither knew nor feared that her father had been killed so that the effect of what she heard and witnessed was not enhanced or accentuated by reason of her close relationship with one of the victims. On that finding, the claim for damages for psychiatric injury failed.