Appeal judges uphold ‘loss of society’ damages award but rule mother of dangerous driving victim was not a ‘secondary victim’

Martha Young, who witnessed the immediate aftermath of the fatal crash in which she later learned her son David had died, was awarded nearly £250,000 damages after a judge ruled that she was a “secondary victim”.

Arthur MacVean, who admitted liability and was sentenced to four-and-a-half years’ imprisonment after being convicted of causing death by dangerous driving, appealed on the ground that the award was “excessive”.

The first proposition was 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, in addition to such damages as she was entitled to as the relative of a deceased, as is provided for by the Damages (Scotland) Act 2011.

The second proposition was that the sum of £80,000, being that head of damages awarded by the Lord Ordinary for “loss of society”, was also excessive.

Judges in the Inner House of the Court of Session heard that the pursuer had walked passed the scene of a road traffic incident in Glasgow where her 26-year-old son David died on 1 June 2010.

The defender was driving at a speed in excess of 65mph in a 30mph zone when he lost control of his car in Danes Drive, Scotstoun.

The vehicle smashed into a wall and hit Mr Young before colliding with a lamp post and a tree. Mr Young, who was on his way to meet his mother at Scotstoun Leisure Centre, died at the scene.

Lord Eassie, Lord Menzies and Lord Brodie (pictured) were told that Mrs Young passed the scene on her way to the gym and when her son failed to appear her growing fears that he may have been involved in the crash were later confirmed when police arrived and told her he had died.

Mrs Young, who previously lost her husband in a helicopter crash in 1992 as he returned from working offshore, was awarded damages by the Lord Ordinary after raising a personal injury action against MacVean, but the appeal judges partly upheld his appeal.

The judges refused a challenge to the sum of £80,000 awarded by Lady Rae for loss of society.

Delivering the opinion of the court, Lord Brodie said: “A number of considerations have led us to that view. First and by way of context, we remind ourselves that in a case such as the present the assessment of damages is primarily a matter for the judge at first instance and that function is discretionary in nature.

“The second consideration which has led us to our conclusion that high as it appears to us to be, this award is not one that we are entitled to set aside, is that it was open to the Lord Ordinary to hold this case to be one where the loss of the deceased had a special significance.

“A third consideration overlaps with the second. In this case the Lord Ordinary had heard and accepted psychiatric and psychological evidence of the particularly close relationship between the pursuer and her son and her extreme distress at his death.

“A fourth consideration also arises out of the psychiatric evidence which the Lord Ordinary heard and to which she attached weight. The argument for the defender and reclaimer is that the Lord Ordinary’s award does not fit into the structure or pattern which can be derived from a consideration of previous judicial awards.

“On one view that might be so… On the other hand she did, correctly in our opinion, place weight on the evidence of Dr McLennan and Professor Freeman on the comparative severity of the loss the pursuer had suffered. The Lord Ordinary having done so, it becomes difficult for this court to conclude that her award is as out of line with other judicial awards as it might have appeared at first blush.

“The final consideration to which we have had regard is what may be described as the continuing upward pull of the available jury awards. The Lord Ordinary had regard to jury awards, as she was entitled to do.”

However, the appeal judges upheld the challenge over Lady Rae’s finding that Mrs Young was a secondary victim and said she was not entitled to damages in respect of psychiatric illness.

Lord Brodie said: “The sight or sound of the defender driving into collision with the pursuer’s son would undoubtedly have been horrifying but the pursuer was not present when that event occurred. Coming upon a wrecked vehicle immediately after such a collision in the knowledge that her son was involved in a collision which had resulted in the wreck might also be equally horrifying, but that is not what occurred; the pursuer was unaware of any connection with her son when she saw the vehicle.

“The Lord Ordinary noted that the pursuer began to feel uncomfortable very shortly after viewing the wrecked vehicle; that her suspicions about her son’s involvement began fairly soon thereafter; and that she was distressed prior to her confrontation with the police who confirmed his identity. These events, ‘taken together with the other facts of the case’ led her to conclude ‘after applying all of the relevant control mechanisms’ that the pursuer should be classed as a secondary victim. We cannot support that conclusion.

“A claim will arise only in the highly particular circumstances where the illness is the result of direct perception of the distressing phenomenon. On the evidence as narrated by the Lord Ordinary, that did not occur here. The pursuer was not a secondary victim and accordingly is not entitled to damages in respect of her psychiatric illness.”

The judges therefore recalled the interlocutor of the Lord Ordinary with a view to substituting decree for a sum to reflect their decision. A by order hearing will be held so that the court may be addressed on the full terms of the interlocutor which should be pronounced.