Young v Downey [2020] EWHC 3457 (QB)
The court dismissed the Claimant’s secondary victim claim arising out of the death of her father when she was four years old. Spencer J held that, where a secondary victim had witnessed the death, injury or imperilment of a loved one (or its immediate aftermath), it was necessary for them to show an appreciation that the primary victim was or might have been involved in the incident and was or might have been the person (or one of the persons) killed, injured or imperilled. The judge found that the four-year-old Claimant was unlikely to have had such an appreciation on the basis of what she had witnessed.
Facts
The Claimant’s father had been a lance corporal in the Household Cavalry and was killed by a bomb explosion while on parade on 20 July 1982. On that day, the Claimant was in the barracks nursery. The judge accepted that she had watched her father leave that morning. When the bomb exploded, she heard a huge noise and felt the building shake. She then saw out of the window soldiers returning to the barracks covered in blood and embedded with nails, at which point she was taken to a different room. She remembered telling her mother that “daddy should be coming home now”, but he never did.
Expert evidence and parties’ arguments
The judge invited the Claimant’s adult psychiatrist, Dr Cooling, to explain what a four-year-old might have experienced. Dr Cooling’s evidence was that the Claimant would have understood that there was “an interruption, a problem” and that she would have appreciated she was seeing something “unusual, frightening and challenging”. He interpreted the statement “Daddy should be coming now” as a child seeking reassurance which was not forthcoming.
The Claimant submitted that on the basis of Dr Cooling’s evidence, the court could find that “she did associate what she had heard (the bomb exploding) and what she saw (the soldiers wearing the same uniform as her father returning covered in blood and, in some cases, severely injured) with danger to, or fear for, her father.” She also submitted that she fell within the aftermath principle, albeit that she had not gone to the scene of the accident; rather, the aftermath came to her as the injured soldiers returned to the barracks.
The Claimant further submitted that while claims would normally entail actual sight of the injured person, “sight of the accident once the victim has been removed from the scene may also be sufficient”.
The Defendant was not represented.
The judgment
At [26], Spencer J considered that the issue in the case was whether it is necessary for a secondary victim’s shock to be “materially connected to an appreciation that the primary victim is a loved one… and that a loved one has been or might have been involved in the accident witnessed (including its aftermath)”. He accepted that sight of an accident without the victim at the scene may be sufficient, but “appreciation that a loved one has been or may have been involved is a necessary ingredient” (at [27]).
Spencer J rejected the Claimant’s submission that there was an association in her mind between what she had seen and heard, and the death of her father. He noted that “although the Claimant gives evidence of having heard the bomb explode and having witnessed the aftermath of the event in terms of seeing the return to barracks of the injured soldiers, she does not say that she remembers associating what she saw and heard with her father or appreciating that her father was or might be involved.” He rejected Dr Cooling’s evidence that the Claimant was worried her father might not be coming home, instead interpreting her comment as meaning that she expected her father to return. He concluded “my interpretation of the evidence is that it never occurred to this four-year-old’s mind at all that her father might have been injured, or killed, or involved at all in what she had heard or seen”. The claim therefore failed (at [32]).
Comment
What is it necessary to witness? The first point of interest is what is sufficient in terms of witnessing the ‘aftermath’ of an event. In this author’s view, it must be right that the known involvement of a loved one is what distinguishes true secondary victims from bystander cases. On the facts, Spencer J dismissed that the known or even possible involvement of a loved one was present in this case. However, it is implicitly suggested that had the Claimant appreciated the potential involvement of her father in what she saw, it would have been possible for her claim to succeed (see [11], [26], [29], where ‘might have been involved’ is used). This raises the broader question: if the victim is not present or identifiable in the accident/aftermath, can the claimant recover where the victim’s involvement is possible (and transpires to have been correct)?
In this author’s view, it would not have been straightforward for Ms Young to have succeeded even if it did occur to her that her father might have been involved. In Alcock v CC South Yorkshire [1992] 1 AC 310, Lord Oliver considered the position of those claimants who had seen television images and later realised that their loved ones had been killed. While this primarily turned on whether the images were sufficiently shocking, Lord Oliver also addressed the difficulty where the connection between the event and the loved one was not made in a short period of time (at [147] (emphasis added)):
“These images provided no doubt the matrix for imagined consequences giving rise to grave concern and worry, followed by a dawning consciousness over an extended period that the imagined consequence had occurred, finally confirmed by news of the death and, in some cases, subsequent visual identification of the victim. The trauma is created in part by such confirmation and in part by the linking in the mind of the plaintiff of that confirmation to the previously absorbed image. To extend the notion of proximity in cases of immediately created nervous shock to this more elongated and, to some extent, retrospective process may seem a logical analogical development. But… I cannot for my part see any pressing reason of policy for taking this further step along a road which must ultimately lead to virtually limitless liability.”
In line with Lord Oliver’s observations, the claimant mother in Young v MacVean [2015] CSIH 70 failed to succeed where she had driven past the scene of an accident involving her son, but had not realised he was involved until sometime later that day. On the other hand, in dismissing an application for strike out brought by the Defendant Trust, the court in Werb v Solent (2017) WL 02978816 held that there were reasonable grounds for advancing a claim for psychiatric injury as a secondary victim brought by the second claimant, who was the father of a psychiatric inpatient who had killed himself while on leave from hospital. The second claimant had seen his son’s body from a bridge before realising whose it was, and had returned to the scene after the first claimant told him in a phone call that their son was missing. He brought the claim on the basis that it was the composite of going to the bridge, then hearing from the first claimant and returning to the bridge that constituted the shocking event, which had all occurred within about 25 minutes. The court held that there was a good arguable case that the secondary victim had been in close proximity in space and time to the relevant event and that his psychiatric shock resulted from a sudden, unexpected and exceptional shock [24]. The court also rejected the contention that the second claimant had no reasonable grounds for advancing his claim for psychiatric injury as a secondary victim on the grounds that his shock had been caused by retrospective communication [25-28]. In this author’s view, it is likely that any future claimants who do not physically see their loved one involved in the relevant accident must come to the realisation that they were involved with certainty and in a short space of time.
Cognitive impairment by age or otherwise: This judgment is also of interest for its implications for secondary victim claimants who were very young at the material time, or who are otherwise cognitively impaired. The strong suggestion is that it will be difficult for children of a very young age to show the necessary appreciation of horror, and this is supported by the case of Tanner v Sarkar [2016] 12 WLUK 259. In that case, where a child witnessed parts of the illness and death of her little brother, the judge found on the evidence of a child psychiatrist that a five-year-old “would not have had sufficient comprehension of events to be able to process cognitively what was going on in a sense that permitted her to feel shocked by a realisation of Haydn’s imminent death” (at 75), much in line with Spencer J’s comments in this case. On the other hand, in the context of slightly older children, Chamberlain J commented in Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 that the primary victim father’s collapse “would have been horrifying … and especially so to children of 12 and 9”, suggesting that the immaturity of slightly older children would amplify the shock experienced.
The key message is that a secondary victim claim which involves young children or a cognitively impaired adult should be firmly shored up with evidence from an appropriately qualified psychiatrist. Neither Young nor Tanner have purported to set a rule about recovery at a young age, and each case will depend on the facts and evidence; nonetheless, there is clearly a measure of judicial caution about assuming the necessary understanding for Alcock shock in very young children.
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