Young v MacVean
| Jurisdiction | Scotland |
| Judge | Lady Rae |
| Judgment Date | 29 September 2015 |
| Neutral Citation | [2015] CSIH 70 |
| Published date | 29 September 2015 |
| Date | 29 September 2015 |
| Court | Court of Session (Inner House) |
| Docket Number | No 9 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 70
PD706/13
Lord Eassie
Lord Menzies
Lord Brodie
OPINION OF THE COURT
delivered by LORD BRODIE
in the cause
by
MARTHA SARAH YOUNG
Pursuer and respondent;
against
ARTHUR MACVEAN
Defender and reclaimer:
Pursuer and respondent: G Clarke QC, Forsyth; BLM
Defender and respondent: Milligan QC; bto
29 September 2015
Introduction
[1] The pursuer sues for damages in respect of the death of her son who was killed on 1 June 2010 when a motorcar driven by the defender mounted the pavement of Danes Drive, Scotstoun, Glasgow, and struck him. The defender’s driving on that occasion was such that he was convicted of contravention of section 1 of the Road Traffic Act 1988 and sentenced to a term of four and a half years imprisonment.
[2] The defender’s liability for causing the death of the deceased is admitted. Following proof on the quantification of the damages, the Lord Ordinary awarded the pursuer the sum of £249,600 in terms of interlocutor dated 11 November 2014. The defender now reclaims on the ground that this award was excessive. That ground relies on two propositions. The first proposition is that the Lord Ordinary erred in law in holding that the pursuer was to be regarded as a secondary victim who was therefore entitled to damages for personal injury in the form of psychiatric illness caused by her experience of the death of the deceased in addition to such damages as she was entitled to as the relative of a deceased who has died as a result of the fault of another person, as is provided for by the Damages (Scotland) Act 2011. The second proposition is that the sum of £80,000, being that head of damages awarded by the Lord Ordinary in terms of section 4(3)(b)(ii) and (iii) of the 2011 Act in respect of loss of society, is excessive.
[3] The pursuer was born on 26 April 1954. She is a widow, her late husband having been killed in a helicopter crash in 1992 when returning from working offshore. Her deceased son was born on 7 March 1984. He was accordingly 26 years of age at the date of his death. Her son was the third of the pursuer’s close relatives who died suddenly and unexpectedly. When the pursuer was 21 years of age her father died in the street having suffered a stroke.
Summary of the award of damages
[4] The Lord Ordinary’s award of damages had the following heads:
1.1 Damages in respect of bereavement
1.1.1 Distress, grief and loss of society, as provided for by section 4 (3) (b) of the Damages (Scotland) Act 2011 - £80,000, with one half allocated to the past and interest on that one half from the date of the deceased’s death.
1.1.2 Loss of financial support, as provided for by section 7 of the 2011 Act - £2500
1.1.3 Personal services as provided for by section 9 of the Administration of Justice Act 1982 - £5190 in respect of the past (an annual figure of £1250 with interest) and £24,940 in respect of the future (based on a multiplicand of £1250 and a multiplier of 19.95)
1.2 Damages in respect of personal injury
1.2.1 Solatium – £35,000
1.2.2 Loss of earnings - £60,000
1.2.3 Services - £20,000
1.2.4 Cost of clinical psychological treatment - £6250
A secondary victim
The law
[5] Not every adverse consequence of an act or omission, which, from some perspective or another, can be described as wrongful (“a wrong”), gives rise to a claim for damages. That is so independent of questions of foreseeability and causal connection. The law sets limits beyond which adverse consequences will be regarded as too remote from the relevant wrong to give rise, on the one hand, to a right of action and, on the other, to an obligation to make reparation. In order for the relevant right and the correlative obligation to arise, the loss must be caused by the wrong and it must have been reasonably foreseeable that the wrong would cause the loss but, in addition, there must be what is usually described as a relationship of “proximity” between the person who suffers injury and loss and the wrongdoer. Thus, a particular wrong may cause loss to a number of persons but only those who can establish the requisite relationship of proximity with the wrongdoer will fall into the class of victims who have a claim for damages against the wrongdoer. Where the relevant wrong is a careless act or omission then the issue can be framed in terms of whether the victim was within the ambit of such duties of care as were owed by the wrongdoer. For there to be a duty of care owed by the wrongdoer to a particular injured person there must be a relationship of sufficient proximity between them. If the relationship is too remote then there is no duty and therefore no liability in the event of injury, even although injury has been caused by the wrongdoer’s act or omission.
[7] An example of what falls to be regarded as too remote and therefore which will not give rise to a claim for damages, is where the injured person is someone who has suffered financial loss as a consequence of physical injury to or the death of another person (the “primary victim”). For instance, an employer cannot sue in respect of the death of an employee, however indispensable that employee may be to the financial success of the employer’s business: Reavis v Clan Line Steamers 1925 SC 725. An exception is made by the 2011 Act in the case of the death of the primary victim where derivative claims are given to certain classes of relatives of the primary victim to recover certain heads of damages (a bereavement award). But, as a matter of the common law of negligence, the general rule is that however adversely affected he may be by reason of the death of another, a person suffering injury or loss in respect of that death has no claim for damages against the wrongdoer.
[8] That is the general rule. It is subject to an exception in the common law. The exception applies to cases, such as the present case, where the affected person has suffered psychiatric injury (conventionally referred to as “nervous shock”) by reason of the contemplation of the death of or physical injury to the primary victim. However, the exception does not apply to all such cases. Subject to what Lord Wilberforce referred to as an extension to the exception (see in McLoughlin v O’Brien [1983] 1 AC 410 at 418), it only applies where the nervous shock has been caused by the shocked person being immediately and directly confronted, through sight or sound of it, by the primary victim’s death or injury. In Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 410, Lord Oliver of Aylmerton summarised the nervous shock cases which do fall within the exception as being those “in which the event of injury to the primary victim has been actually witnessed by the plaintiff and the injury claimed is established as stemming from that fact”. Thus, the plaintiff who suffers nervous shock by reason of his witnessing the suffering or death of a primary victim is treated essentially as if he too had been physically injured. A direct psychological affront is taken to be the equivalent of a direct physical affront. Lord Oliver described a plaintiff who falls within the exception as a “secondary victim” of the relevant wrong.
[9] The question then comes to be how is a secondary victim to be identified. Lord Oliver’s answer was explained by him as follows (supra at 411A-412A):
“Although it is convenient to describe the plaintiff in such a case as a ‘secondary’ victim, that description must not be permitted to obscure the absolute essentiality of establishing a duty owed by the defendant directly to him—a duty which depends not only upon the reasonable foreseeability of damage of the type which has in fact occurred to the particular plaintiff but also upon the proximity or directness of the relationship between the plaintiff and the defendant. The difficulty lies in identifying the features which, as between two persons who may suffer effectively identical psychiatric symptoms as a result of the impression left upon them by an accident, establish in the case of one who was present at or near the scene of the accident a duty in the defendant which does not exist in the case of one who was not. The answer cannot, I think, lie in the greater foreseeability of the sort of damage which the plaintiff has suffered. The traumatic effect on, for instance, a mother on the death of her child is as readily foreseeable in a case where the circumstances are described to her by an eyewitness at the inquest as it is in a case where she learns of it at a hospital immediately after the event. Nor can it be the mere suddenness or unexpectedness of the event, for the news brought by a policeman hours after the event may be as sudden and unexpected to the recipient as the occurrence of the event is to the spectator present at the scene. The answer has, as it seems to me, to be found in the existence of a combination of circumstances from which the necessary degree of ‘proximity’ between the plaintiff and the defendant can be deduced. And, in the end, it has to be accepted that the concept of ‘proximity’ is an artificial one which depends more upon the court's perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction.
The common features of all the reported cases of this type decided in this country prior to the decision of Hidden J in the instant case and in which the plaintiff succeeded in establishing liability are, first, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff's nervous system; thirdly, that the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and, fourthly, that the...
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