Another Hurdle for Nervous Shock Claims

February 5, 2021

By David Knifton QC

Introduction

Claimants who suffer a recognised psychiatric illness as a result of the defendant’s negligence may recover damages in 2 scenarios. If the claimant’s injury resulted from the trauma of himself being endangered or physically injured, he may recover as a “primary victim” provided he can prove that injury (whether physical or psychiatric) was reasonably foreseeable as a result of the defendant’s negligence (Page v Smith [1996] AC 155). Primary victims are those who were directly involved in the accident, and thus within the range of foreseeable physical injury, including rescuers who are exposed to physical danger (White v Chief Constable of South Yorkshire Police [1999] 2 AC 455). The category has, however, been held to extend to those who, as a result of the defendant’s negligence, believe themselves to be the involuntary cause of another’s death or injury (e.g. Dooley v Cammell Laird [1951] 1 Lloyd’s Rep 271, where a crane driver suffered psychiatric illness after seeing a defective rope on his crane snap, causing the load to fall into the hold of a ship where he knew his fellow employees were working, even though none was in fact injured).

Where, however, the claimant’s psychiatric illness results from the injury or endangerment of another caused by the defendant’s negligence, the claimant is referred to as a “secondary victim”. Recovery of damages is subject to a number of policy restrictions, described by Lord Steyn in White as a “patchwork quilt of distinctions which are quite difficult to justify”. In Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, the House of Lords established 4 hurdles which a secondary victim must overcome in order to establish liability, namely:

1. That the claimant has a close tie of love and affection with the person killed, injured or imperilled, rather than being a mere bystander (there is a rebuttable presumption of such a tie in the relationship between parent and child or husband and wife, but it must be proved in other cases);
2. That the claimant was close to the incident in time and space (so that he directly perceived some of the events which go to make up the accident, including the immediate aftermath);
3. That the claimant directly perceived the incident rather than, for example, hearing about it from a third party;
4. That the illness was induced, at least in part, by a sudden shocking event.

Although a number of cases have tested the limits of these hurdles, an issue which has never previously been considered is whether a secondary victim must prove that his shock resulted from an appreciation that the primary victim is a loved one who had been or might have been involved in the incident.

Young v Downey

On 20 July 1982 the IRA detonated a car bomb in Hyde Park as members of the Household Cavalry rode past from Knightsbridge Barracks to Horse Guards Parade for the Changing of the Guard. Four soldiers, including Lance Corporal Young, were killed by the bomb, whilst 31 other people were injured and 7 horses had to be destroyed. John Downey, a member of the IRA, was deeply implicated in the planning and execution of the attack. In particular, his fingerprints were found on tickets for the car parks in which the car had been stored in the days immediately prior to the attack. Although extradition proceedings against him had been considered in the 1980s, they were never commenced.

Downey was arrested at Gatwick Airport in May 2013, and subsequently charged with 4 counts of murder arising out of the explosion. However, the indictment was stayed as an abuse of process because Downey had, in 2007, been sent a letter assuring him that he would not face criminal charges. That letter was sent in error, as the administrative scheme formulated during the Northern Ireland Peace Process was not intended to provide an amnesty for those who were “on the run” having committed terrorist offences. Having been deprived of the opportunity to see Downey brought to justice in the criminal courts, Lance Corporal Young’s daughter brought civil proceedings for damages against him. In addition to a claim for loss of dependency under the Fatal Accidents Act on behalf of herself and her mother, the Claimant brought a claim for psychiatric injury arising out of her father’s death. At a trial on liability in December 2019, Yip J concluded that Downey was liable for the attack.

The claim came before Martin Spencer J in December 2020 for damages to be quantified. The evidence showed that the Claimant, who was aged 4½ at the time of the bombing, watched her father leaving the barracks from the windows of the nursery. Shortly afterwards, she heard the bomb explode and saw a number of soldiers returning covered with blood and embedded with nails. She recalled feeling frightened and subsequently telling her mother “Daddy should be coming now”, but he never did. Psychiatric evidence established that the Claimant (now 39) had experienced nightmares, a fear of needles and other difficulties as a child, and had been diagnosed with depression and PTSD as an adult. The Claimant’s psychiatric expert concluded that she developed PTSD, a recurrent depressive disorder and an enduring personality change as a result of the shock of witnessing the circumstances and direct aftermath of the Hyde Park bombing.  He specifically said that he would have expected a child of 4½ to make an association between what she was watching and her father, given that the injured men who returned were wearing the same uniforms, and that she would have been frightened, albeit she would not have appreciated that it was a terrorist attack. He interpreted the words “Daddy should be coming now” as her seeking reassurance about her father, which was not forthcoming.

Nevertheless, Spencer J rejected the Claimant’s claim as a secondary victim. Whilst accepting that she clearly had a close tie of love and affection to her father, was close to the incident in time and space, and had directly witnessed its aftermath, he did not accept that she appreciated that her father was in danger. Contrary to the Claimant’s psychiatric expert, the judge interpreted the phrase “Daddy should be coming now” as indicating that the Claimant expected her father home soon, rather than as indicating any anxiety on her part or seeking reassurance. He distinguished the perception of an adult from that of a young child, and did not think that a 4-year-old would have appreciated that her father was in danger without witnessing herself a trauma being inflicted upon him. If she did not appreciate that her father was involved, she was arguably in no different position to any other child in the nursery. Her father had in fact been killed, but if she did not know or fear that, the effect of what she saw was not enhanced by her close relationship with one of the victims.

Spencer J concluded in law that it was necessary, in order for a secondary victim to recover, that her “shock” is materially connected to an appreciation that the primary victim is a loved one, and that it is a necessary ingredient for the secondary victim to appreciate that the loved one has been or might have been injured in the accident witnessed. He reasoned that the distinction between those with close ties of love and affection and mere bystanders was based upon the fact that the accident has or may have involved a loved one. The identification of the loved one as the primary victim is an essential element. Whilst an adult such as the Claimant’s mother who witnessed the same events would naturally be terrified that her husband was involved, the same was not necessarily true of a young child.

Accordingly, the Claimant could not recover damages for her psychiatric injury, although the dependency claim under the Fatal Accidents Act was assessed at £713,457.

Comment

Whilst it is difficult to fault the logic of Spencer J’s approach to the law, it is somewhat troubling that, having specifically invited oral evidence from a very experienced psychiatric expert in order to elucidate what might have been in the mind of a 4-year-old child, the judge then chose to reject that evidence, and to substitute his own view. The entitlement of a judge to reject expert evidence, even when unchallenged (the Defendant took no part in the trial), is well-established in law (see, for example, Armstrong v First York [2005] EWCA Civ 277). Whilst a judge must evaluate expert evidence and should not reject it without having grounds to do so, ultimately it is the judge who must determine the facts, having regard to all the evidence and applying the burden of proof.

No doubt there will be the potential for fertile arguments in the future as to whether a child of a particular age would have sufficient understanding to appreciate the link between the distressing events they have witnessed and the potential involvement of a loved one. Undoubtedly, good quality evidence from an experienced child psychiatrist is likely to be required, which it might be difficult for a judge to reject. It remains to be seen whether Spencer J’s decision is the subject of any appeal.