Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

“… And Injustice for All”: First Thoughts on Secondary Victims Following Young v MacVean

Document Cited authorities 1 Cited in Related
Vincent
DOI10.3366/elr.2016.0365
Published date01 September 2016
Pages348-353
Date01 September 2016
FACTUAL CIRCUMSTANCES

On 1 June 2010, David Young, the twenty-six year old son of the pursuer, suffered fatal injuries when a dangerously-driven car mounted the pavement and struck him. At the time of the accident he was on his way to a local gym where he had arranged to meet his mother. While on her way to the gym, the pursuer came upon the scene around an hour later. By this time, her son's body had been taken away. However, it was plain that there had been a serious accident: the road had been closed by the police and a very badly damaged car had crashed into a wall and come to rest against a tree. As she continued the short journey into the gym, the pursuer, who had lost her husband in an offshore helicopter accident some thirty years previously, was already beginning to feel psychologically affected by what she had seen. It had not yet occurred to her that her son might have been involved; nevertheless, the crash looked so bad that she came to believe it must have been fatal, and she began to empathise with and feel sorrow for the family who would be caught up in its consequences.

When she arrived at the gym, she could not immediately find her son, and overheard that a “20 year old boy” had been killed by a speeding driver. She began to fear for her son's safety. She noticed that she had received multiple missed calls from her daughter who, when called, said that the police had been to the family home and wished to speak to her. By this point she had begun strongly to suspect that her son had been killed. In a state of panic, she asked the gym's receptionist to check whether her son had signed in; discovering he had not, she became “almost hysterical, desperate, and screaming to see her son”.1 Police officers arrived at the gym and confirmed to the pursuer that her son was dead. The pursuer became distraught and needed some considerable time to compose herself. So affected was she by what had happened that when she identified her son's body she did not recognise his face, but instead saw that of her deceased husband.

The pursuer sued the driver of the motor car in a dual capacity. She sought both reparation for psychiatric injury suffered as a secondary victim of the accident and compensation as a family member in terms of the Damages (Scotland) Act 2011. This article will focus primarily upon the claim qua secondary victim.2

 THE CASE AT FIRST INSTANCE

It was not disputed that Mrs Young suffered a serious psychiatric injury as a result of her son's death.3 At issue was the question of whether she had suffered it in the precise and limited circumstances where the law provides a remedy for a secondary victim. The specific battleground on which the case was played out was the second Alcock4 criterion: the need for presence by the secondary victim at the scene or the aftermath. Counsel for the defender argued that it was not enough for the pursuer to have incidentally passed by the crash scene prior to learning of her son's involvement in the accident. Before liability could be established, it was necessary for the pursuer to be able to demonstrate that she had suffered a shock as a result of witnessing something that she knew to be the consequence of an event involving a loved one...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT