It is an area in which policy considerations have weighted heavily with the judiciary. The latest case of Martha Young v Arthur MacVean  CSOH 133 marks a potential extension of the circumstances in which damages are recovered, although it has to be recognised that this case turned on its own facts.
The facts in this case were tragic. Mrs Young, who was 59 at proof, had arranged to meet her 26 year old son at their gym. On the way there, Mrs Young passed the scene of a road accident. She saw a badly damaged vehicle against a tree and immediately thought that someone had died. After that, her reaction was relief that her own children were safe, but the crash was so bad that she was affected by it.
She carried on to the gym but described in her evidence (and was accepted as having) a sense of unwillingness to carry on with her class. She was pre-occupied by thoughts of the accident. Her son was not at the gym as she had expected and she asked that he be tannoyed.
As time went on, the pursuer felt the energy going out of her. After her warm up, she stopped for some water and noticed that she had six missed calls on her phone. She became scared. The calls were from her daughter, whom she then phoned. The police had been at her house. At that point, the pursuer shouted to a friend that she thought her son had been killed in the accident.
The gym checked to see if her son had checked in. He had not. At that point, the evidence in the case was that the pursuer was almost hysterical - screaming and desperate to see her son. The police arrived and told her that her son had been killed in the accident.
The pursuer developed a significant psychological condition, variously described as significant depression or PTSD.
In her action, the pursuer sought damages for her distress, grief and loss of society in terms of section 4(3) of the Damages Act 2011 and separately for her personal injury, in respect of psychological damage and its consequences.
The law has long recognised that damages can be recovered by those who suffer psychological damage through the death of another, but strict control mechanisms have been developed to limit the range of claimants and the circumstances in which they can claim.
The pursuer sought to bring herself into the category of secondary victim on the basis that she had a close bond of affection with the deceased and that her injury was caused by her coming across the immediate aftermath of the accident, through her direct perception. It is not enough merely to be told of the death of a loved one, or see an accident on television.
The defender argued that, to succeed in recovering damages, a secondary victim had to come upon the accident in the knowledge that the loved one was involved in the accident. Otherwise, the defender claimed, learning of the identity of those in the accident is learning retrospectively, which does not qualify.
The court rejected that argument as 'an artificial distinction' . Furthermore, the court indicated it did not need to come to a view on what was described as a 'very narrow approach'. The court was satisfied, on the evidence, that the pursuer had begun to feel very uncomfortable very shorty after seeing the accident, began to be suspicious about her son's involvement soon after seeing the accident and was distressed prior to meeting the police, who confirmed her son's identity. On these facts, the court was satisfied, after applying the control mechanisms, that the pursuer was a secondary victim and she was awarded damages of £35,000 by way of solatium for her personal injury.
This case marked another decision on the appropriate level of award under section 4(3). In this case, the pursuer was awarded £80,000.
It is understood the decision has been appealed. It will be interesting to see whether the appeal court takes the opportunity to restate the control mechanisms. It is perhaps curious to describe the defender's approach as making an 'artificial distinction'. It might be thought that many of the distinctions in this area of the law are already 'artificial'. Why, for example, does the accident have to be perceived directly and not through the medium of television. Is it no less distressing? It may be, but surely only marginally so.
The mischief the earliest cases were trying to avoid was the by-stander claim. Policy is right to exclude claims by those in no danger themselves and not connected to the deceased. It might be thought that those are sufficient controls. The law may be in danger of becoming very confused here and difficult for the public to understand. The law recognises that the distress caused by the death of a loved one attracts significant damages, in terms of the Damages Act. However, if in addition to that there is an element of psychological damage, recovering damages for that depends on the circumstances surrounding the death, which seems an artificial distinction.
It will be interesting to see what the appeal court makes of this.
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