Mother loses "secondary victim" award, but grief damages upheld
The mother of a young man who was killed by a motorist while a pedestrian, has lost her claim to be treated as a secondary victim where, although she witnessed the aftermath of the accident, she did not know at the time that her son had been involved.
Three appeal judges reversed the decision of the Lord Ordinary (click here for report) that Martha Young was entitled to damages as a secondary victim after she had walked past the scene where a badly damaged vehicle was against a tree, from which she thought someone must have died, received information shortly afterwards that made her fear her son had been involved, and then became hysterical as she attempted to find out where he was.
However the court rejected a separate ground of appeal that an award of £80,000 damages for distress, grief and loss of society was excessive.
Delivering the opinion of the court, Lord Brodie, who sat with Lord Eassie and Lord Menzies, said the case law established that "for a psychiatrically injured person to qualify as a secondary victim in respect of the death of a primary victim, she must have been present more or less at the time and place of the event which caused the death and her injury must have been caused by the sudden perception through her own senses of the fate of the primary victim".
While seeing or hearing the "immediate aftermath" of the event had been recognised as an extension to the rule, when the pursuer viewed the wrecked vehicle she had no reason to connect what she saw with her son; in fact, her initial reaction had been one of relief that her own children could not be involved, as her son did not drive and her daughter was at home.
"That initial feeling of relief gave way not long afterwards to a feeling of increasing concern and worry for her son, but, on the evidence heard by the Lord Ordinary and narrated in her opinion, it cannot be said that the pursuer suffered nervous shock as a result of viewing what might be described as the aftermath of the event in which her son was killed", Lord Brodie said.
Heads of damages totalling over £120,000 for personal injury consequential on the Lord Ordinary's decision on this point were therefore disallowed. However the court upheld the award of £80,000 for the loss of the pursuer's son, despite an argument that it was out of line with other cases, in particular Currie v Esure Services in 2014, in which £42,000 was awarded where the mother and son had been of similar ages to those in the present case.
The court said the award, while high, did not meet the test of being "wholly unreasonable or clearly excessive"; the Lord Ordinary was entitled to hold that the loss had special significance for the pursuer, being the third sudden bereavement involving the principal male member of her family; and the Lord Ordinary had accepted psychiatric and psychological evidence of the particularly close relationship between the pursuer and her son and her extreme distress at his death. She was entitled to depart in this case from "the accepted hierarchy of awards"; and "the continuing upward pull of the available jury awards" was also relevant.