In June, in Ronayne v Liverpool Women’s Hospital, the Court of Appeal in England & Wales reiterated the ‘control’ tests applying to claims in which secondary victims (who were not physically hurt by the accidental tort) suffer psychiatric harm as a result of personal injuries caused to someone else close to them. The relevant control tests remain, largely, those laid down in the litigation that followed the Hillsborough stadium disaster in 1989. In Scotland, the recent case of Young v MacVean (29 September 2015) shows the Inner House of the Court of Session adopting a very similar approach. The overall messages from both jurisdictions are:
- that such claims remain subject to high legal thresholds, and
- a judicial recognition that these controls may not always appear logical.
The Court of Appeal sent a very strong signal in Ronayne and may have brought to an end a recent run of secondary victim psychiatric claims in England and Wales by reaffirming, and perhaps reinforcing, the robust control mechanisms that apply.
Mr Ronayne suffered a psychiatric event as a result of seeing his wife in difficulty in hospital due to complications arising from her hysterectomy. The trial judge found in his favour and awarded him just over £9,000 (the legal costs are likely to have been far in excess of this). The Court of Appeal overturned the award. The control tests set out in the post-Hillsborough cases and, more recently, by the Court of Appeal in Taylor v Novo (2013) were not satisfied on the facts of Ronayne. The seven cumulative tests in Taylor were that:
- the psychiatric injury was reasonably foreseeable
- the (secondary victim) claimant had a close emotional relationship with the primary victim
- the claimant suffered a recognised psychiatric injury
- that was caused by the actions of the defendant
- it was caused by “shock”, in the sense of 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 its immediate aftermath, and
- must have perceived the death or risk of injury with her own unaided senses.
In its judgment in Young v MacVean, on 29 September, the Inner House of the Court of Session allowed the defender’s appeal against an award of damages for psychiatric harm suffered by the pursuer as a secondary victim. The legal control mechanisms for secondary claims were similar in Scotland to those in England and Wales and Lord Brodie, who delivered the Court’s opinion, referred expressly to the seven tests set out in Taylor.
The facts in Young do appear to be quite finely balanced. The claim arose from a car accident in which the pursuer’s son had been killed. Although she had passed the accident site not long after it had happened, at that time she was unaware that her son was involved in it and found out only subsequently. This may well have been the critical factual element that caused the case to fail. In a key passage of the judgment, Lord Brodie said (the bold emphasis has been added) that:
… the pursuer’s experience over what was a relatively short period had been “ghastly”, but 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. The sight or sound of the defender driving into collision with the pursuer’s son would undoubtedly have been horrifying but the pursuer was not present when that event occurred. Coming upon a wrecked vehicle immediately after such a collision in the knowledge that her son was involved in a collision which had resulted in the wreck might also be equally horrifying, but that is not what occurred; the pursuer was unaware of any connection with her son when she saw the vehicle. It is accepted that the pursuer sustained psychiatric injury but hers is of the nature of an illness caused by the accumulation over a period of time, albeit a relatively short time … perhaps not entirely logically, psychiatric injury of that sort does not give rise to a claim for damages.
The underlying accident in Young also gave rise to claim for damages for loss of society, conceptually akin to a bereavement award. If the law on secondary victims is nearly identical in both jurisdictions, there is a marked contrast in the treatments of the bereavement (or equivalent) award.
English law would award only £12,980 for this head. The level is set by statute. It is purely a conventional award and made on a per death basis, regardless of the number of qualifying relatives.
The Scottish award is entirely different. The right to the loss of society award is set out in the Damages (Scotland) Act 2011. The level, notionally, is a matter for a jury but a significant body of judicial precedent informs the level at which awards are made in practice. The 2011 Act stipulates (at section 4(3)(b)) that the court shall award such sum, if any, to compensate for
- distress and anxiety endured by the relative in contemplation of the suffering of A before A’s death
- grief and sorrow of the relative caused by A’s death
- the loss of such non-patrimonial benefit as the relative might have been expected to derive from A’s society and guidance if A had not died.
The lower court’s award to Mrs Young under these provisions was £80,000. Lord Brodie rejected the defender’s appeal on this aspect. The defender had sought to argue that, based on an award in 2014 of £42,000 for the death of a 25 year old-son in Currie v Esure, the award in this case was excessive. Lord Brodie said that the level of the award was a matter for the judge at first instance, because “she is the primary decision-maker, she is exercising a discretion and she has heard the evidence which is the basis for the decision.” Furthermore, the level of the award should not “be quantified simply by reference to a tariff [but it] is to be assessed by reference to the particular circumstances of the case, as disclosed in the evidence.”
In the overall disposal of Mrs Young’s claims, the Court favoured the pursuer’s arguments on the loss of society award but preferred the defender’s submissions on the (non) actionability of the secondary psychiatric injury. The effect of this mixed outcome – in which each side succeeded on one substantive point but failed on the other – on expenses (costs) was, perhaps unsurprisingly, reserved by the Court.
About the Author
Alistair Kinley is BLM’s Director of Policy & Government Affairs.
Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.
He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).