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Full knowledge not necessary for "secondary victim" damages, judge rules

28 August 2014

A mother has been awarded damages as a "secondary victim" after she witnessed the aftermath of an accident and began to fear for her adult son, though it was not confirmed to her until later that he was the person killed, a judge has ruled.

Lady Rae in the Court of Session held that Martha Young was entitled to damages under this heading among others, following the death of her son David, aged 26, as a pedestrian killed by a man, Arthur MacVean, later convicted of causing death by dangerous driving.

Mrs Young, who had previously suffered the sudden and unexpected deaths of three close relatives, including her husband who was killed in a North Sea helicopter accident, had been on her way to meet her son at a gym and had walked past a badly crashed car where the police were in attendance. She thought someone must have died and began to fear for her son when he was not at the gym. By the time police found her to confirm the news, she was nearly hysterical. She had to identify him at the mortuary.

The defender argued that to qualify for "nervous shock" damages, the pursuer required to show that she had suffered loss, injury and damage as a result of shock caused by witnessing the accident or its immediate aftermath; that there was a close tie of love and affection between her and the primary victim; and that her psychiatric injury must have been caused by direct perception, through her own unaided senses, of the accident or its immediate aftermath. It was not enough just to be told of the death of a close relative.

Lady Rae said the photographs of the vehicle involved showed a "horrific scene", but in any event it was the effect of the scene on the pursuer that mattered. She had clearly been affected and on the evidence had had a very strong suspicion that her son was involved before that was confirmed.

"On this evidence I am of the view that her shock was not caused by just being told about his death but had started before that", Lady Rae said. "In any event the period of time between her coming upon the accident and her first contact with the police was not long. It would be wholly artificial to separate her coming upon the aftermath from receiving confirmation of her son’s identity."

Damages for Mrs Young's "moderately severe" post-traumatic stress disorder were assessed at £35,000. She was also awarded £80,000 as a bereavement award, where she had had a "particularly close relationship" with her son, £30,130 for past and future loss of personal services by her son, agreed sums of £60,000 and £20,000 for loss of earnings and services respectively, and £6,250 for clinical psychology treatment – with a further hearing to take place on interest.

Click here to view the judgment.

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