Young v Downey and claims for psychiatric injury by secondary victims

The ability to claim for psychiatric injuries as a result of an accident/negligence/crime appears to have been progressing cautiously over the past decade although we are far from treating psychiatric injury on a par with physical injury.  I have previously blogged about the limits of claiming for psychatric injury in the absence of the physical and the high threshold secondary victims need to reach to succeed in their claims.  Small inroads have been made, for example see  Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB).  My colleague Sam David analysed here the victory won by the secondary victims in this case (two daughters) in defining proximity to include witnessing the consequences of clinical negligence (their father’s fatal heart attack).  Master Cook had previously struck out their claims on the grounds that the negligent act occurred 14½ months prior to the “sudden and unexpected shock” of witnessing their father die.

However, the progression of this area of law often feels like two steps forward and one step back.  Although rehearsed well elsewhere, I will just remind the reader of the essential criteria for secondary victim claims:

1. It must be reasonably foreseeable that a person of “normal fortitude” or “ordinary phlegm” might suffer psychiatric injury by shock. There must also be a recognised psychiatric injury suffered.
2. There must have been a close tie of love and affection to the primary victim.
3. The claimant must have been in close proximity to the event or its immediate aftermath (in time and space).
4. The psychiatric injury must be caused by, and result from, a “sudden and unexpected shock”. It must be caused by seeing or hearing the relevant incident or its immediate aftermath

The two steps back follows the recent decision in Young –v- Downey [2020] (QB).  It is worth giving some background to the case.  Non legal commentary can be found in the mainstream press such as The Guardian and The Times (although the latter is behind a paywall).  The claimant, Sarah Young, was 4 years old when her father, Lance Corporal Jeffrey Young (who was only 19 himself), was killed by a bomb that had been concealed in a car boot.  He was one of four members of the Household Cavalry who died.  The bomb had been placed by the IRA.  A criminal trial did not take place until 2014 and this was cut short.  As part of the peace process, the bomber had mistakenly received a letter of assurance that he would not be prosecuted.  Ms Young was therefore motivated to bring a civil claim in the absence of a successful criminal prosecution.

Ms Young’s main claim (in terms of value) was for loss of dependency under the Fatal Accidents Act 1976.  It is outside the remit of this blog to discuss the claim for exemplary damages but it is well explained within the judgment itself beginning at paragraph 35.  This blog concerns the claim for psychiatric injury as a secondary victim.  Spencer J’s consideration of this begins at paragraph 22.  It was Ms Young’s case that she had suffered PTSD as a result of her witnessing the circumstances and direct aftermath of the bombing which killed her father which had blighted her life.  The evidence of her psychiatric expert supported this.  The defendant was unrepresented and there was no evidence offered in rebuttal.

On the day of the bombing, Ms Young saw her father leave for work, she heard the explosion and the aftermath including soldiers returning wounded and covered in blood.  It was her evidence that she remembered the incident clearly.

Spencer J did not accept that Ms Young as a 4 year old appreciated that her father was at risk of injury and therefore she failed to prove causation as defined in the 4^th criterion. At paragraph 29 Spencer J reasoned,  “my interpretation of the evidence suggests 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 and seen. She does not say so and her remark to her mother later “Daddy should be coming now” indicates clearly, as it seems to me, that she had no appreciation that her father had been involved”.

I agree with much of the surrounding legal commentary on this point.  If the claimant has no subjective awareness that the primary victim is at risk, then they will fail to establish themselves as a secondary victim.  What I and many others find problematic is Spencer J’s rejection of the expert evidence that there was subjective awareness.  The judge used his own interpretation of the claimant’s comment “Daddy should be coming home now” as evidence that Ms Young did not perceive any risk to her father.   This appears to be a narrow interpretation and for those of us keen to progress psychiatric claims, it is difficult not to see it as a purposeful move to retain strict control over secondary victim claims.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.