MARTHA SARAH YOUNG AGAINST ARTHUR MACVEAN

---

 

 

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 133
PD706/13	OPINION OF LADY RAE   in the cause   MARTHA SARAH YOUNG   Pursuer;   against   ARTHUR MacVEAN   Defender:   ________________

 

Pursuer:  Clarke QC and Forsyth;  BLM

Defender:  Milligan QC;  bto

 

26 August 2014

 

Introduction

[1]        This is an action for damages arising out of a tragic road traffic incident on 1 June 2010 when David Adam Young (the deceased) who was born on 7 March 1984 was killed by a dangerous driver.  The pursuer is the mother of the deceased. 

[2]        At around 4.30pm on 1 June 2010 the deceased was walking on the pavement of Danes Drive, Scotstoun, Glasgow when he was struck by a motor vehicle, a Vauxhall Vectra car registration number V997 EEH driven by the defender.  The defender was driving dangerously.  He lost control of his vehicle which mounted the pavement, striking the deceased.  The defender was subsequently convicted of causing death by dangerous driving and was sentenced to a period of imprisonment.  Although parties and witnesses referred to this incident in the course of the proof as a road traffic “accident”, in view of the nature of this incident, I have attempted, unless quoting witnesses, to refrain from using the term “accident”.

[3]        Liability in the case was, for the purposes of the present action, admitted and the only issues before me were firstly, whether the pursuer met the criteria to be classed as a secondary victim and secondly, the levels of quantum.  

 

Evidence
[4]        There was little if any dispute in the evidence.  The principal witness was the pursuer.  She gave some evidence of her history and this was supplemented to some extent by information provided to the psychiatrists who had examined her.  The following historical background of the pursuer is based principally on her own evidence but I have included information which I noted later in the proof from what the pursuer had told the psychiatrists.  The pursuer was in my view an impressive, truthful and reliable witness who provided her evidence in a dignified and restrained way. There was no sense that the witness exaggerated the impact which the death of her son had had upon her.  The pursuer was aged 59 at the date of proof.  She had suffered previously the unexpected and sudden death of three of her close relatives.  When she was aged 21 her father had left the house and had suddenly died in the middle of the street, having suffered a stroke.  It appeared that had had a significant affect upon her.  She married at the age of 27 and had two children, namely, the deceased and her second child, Stephanie, born in 1992.  Her husband worked as a pipe fitter on oil rigs in the North Sea.  Sometime in 1992 when Stephanie was only four weeks old her husband left the family home to work off-shore.  She recollected that her son had accompanied his father to the train station.  When the boy returned he told his mother that his father had lifted him up and reminded him to look after his mother and younger sister.  Some days later, while speaking to her husband on the telephone, he indicated that as the weather was bad he would not be working that day.  Shortly thereafter she heard the news on television of a helicopter crash in the North Sea.  She believed, having regard to her previous telephone conversation with him, that her husband would not have been involved.  Sometime later at approximately 2am the following morning she received a telephone call to be told that her husband was missing.  She subsequently discovered that her husband had been on the helicopter when it crashed into the sea.  The pursuer was seriously traumatised by this event.  In hindsight she acknowledges that she may well also have been suffering from post natal depression at the time.  She had considerable difficulties in looking after the baby, Stephanie.  As a result, family members took over much of the role of bringing the child up until she was approximately five. 

[5]        The relevance of this background is in relation to the very close relationship which the pursuer developed with her son as he grew up.  She spoke of him as taking over some of the roles of his father such as undertaking jobs in the house.  She described her son as supportive and as being a “model son”.  She admitted possibly being overprotective of him.  She attempted to be both his mother and father.  The deceased stayed at home for much of his young life.  He was in regular employment and contributed financially to the family home.  He had purchased his own flat in which he lived for a relatively short time.  He found it difficult financially to support himself there.  He subsequently rented that flat out and returned to his family home.  When he lived away from home he visited his mother on an almost daily basis.  He did odd jobs round the house.  Examples were provided: fixing a fault on a burglar alarm, tidying the garden and building garden furniture.  The pursuer was unable to quantify how much money he contributed to the household but she estimated it at about £1000 a year.  She accepted however that if she had extra money and he needed it she would provide it to him.

[6]        The pursuer also provided information about her employment.  Prior to her husband’s death she had been involved in childcare.  When her youngest child had gone to nursery at about the age of four she returned to part-time work but she felt that she had missed so much while off work she retrained as a child development officer working in a nursery.  She obtained employment which she maintained regularly up to the death of her son.  She had achieved promotion and she was assigned additional duties and responsibilities.  She was encouraged to seek further promotion after further training.  She had made enquiries about this prior to the crash.  She was due to start further training in August of 2010. 

[7]        Subsequent to her son’s death she has had difficulty returning to fulltime work but appears to be making some considerable effort.  There was little detail of this because parties had essentially agreed the amounts involved in past and future wage loss and any amounts which would be paid, subject to the decision as to whether the pursuer was a secondary victim.

[8]        Unusually for the pursuer she had not seen her son for some days prior to 1 June 2010.  She had been away from home for a short period.  She had communicated with him on the Monday prior to the incident and had agreed that she would see him later at the gymnasium which they both attended in Scotstoun, Glasgow.  On Tuesday 1^st June she finished her work at approximately four o’clock and recalled visiting the post office in the Hyndland area of Glasgow.  She returned home where she spoke with her daughter stating that she was proposing to attend the gymnasium.  Her scheduled class was at approximately 6pm.  She left her house shortly after 5pm and noted on her approach to the gymnasium that there was a traffic jam resulting in traffic being diverted at the roundabout near the sports centre onto Dumbarton Road.  Eventually she found a parking place in a side street and walked towards the centre.  As she was doing so she was aware of police activity and streets being cordoned off.  As she was passing the scene of the crash she was able to see a very badly damaged vehicle against a tree.  Her immediate thought was that someone must have died.  Her concern was also that someone must be suffering as a result of this.  Her initial reaction was one of relief that her own children could not be involved as her son did not drive and her daughter was at home.  She felt that the crash looked “so bad” and the state of the vehicle “affected me”.  The witness expressed empathy towards the family which must have been suffering from the consequences of what she believed was an accident at the time.  On entering the gymnasium she was beginning to feel a sense of unwillingness to carry on with her class.  She heard people talking about the crash and making comments such as, “this might stop people speeding on that road”.  Dr McLennan, the psychiatrist who later gave evidence and whose evidence I shall return to, described the pursuer’s mood at this point as being “preoccupied by the accident”.  It seems that the pursuer had asked staff to tannoy for her son because she did not see him around, as expected.  The pursuer stated in her evidence that a friend had overheard that a 20 year old boy had been knocked down.  The friend then said that it made one think of one’s own children.  The pursuer started to think about her own children while at the same time attempting to push these thoughts out of her mind.  She said however that she “felt the energy going out of me.”  At some point she had started her exercise class but after the warm up had stopped for a drink of water.  She noticed that her phone showed that there had been six missed calls.  At that point she became scared.  The calls were from her daughter Stephanie whom she phoned to discover that police had been at the house.  The pursuer shouted to her friend that she thought that the victim of the “accident” was her son David.  She went to the desk to ask them to check the computer to find out whether her son had signed in.  He had not.  Dr McLennan’s evidence was to the effect that it was at this point that the pursuer was almost hysterical, screaming and desperate to see her son.  Her friend was trying to comfort her.  It appears that a member of staff had left the gymnasium to speak to police outside after the pursuer had tried to seek out her son.  The pursuer was aware of police officers entering the gymnasium.  The pursuer used words to her friend such as “Ask if it’s David Young”.  She was aware of the police approaching her and asking her name.  She kept shouting “Is it David, is it David”.  She was taken upstairs to an office.  There she was asked if David had a tattoo and when she said he had, she was told that he was dead.  At that point she remembers screaming and shouting words such as “I don’t think I can go through this again.  I can’t do this”.  She was taken to a police car and then escorted home.  Her friend was present.  She then described the situation in her home with family visiting and coming round her.  Eventually she was taken to the mortuary where she required to identify her son.  Her initial reaction in seeing the body was that it was not her son’s face which she saw but her deceased husband.

[9]        The witness was then asked to describe the subsequent events following her son’s death and the impact upon her.  She described being unable to visit places where she used to meet her son.  She was unable to revisit the gymnasium and although a memorial had been placed in the garden nearby she had only visited it twice.  She could not face returning there.  She avoided driving near the area of the crash and visiting a supermarket in Anniesland where she used to meet her son every Friday afternoon.  When visiting a friend who lives close to the gymnasium she uses a different route to get there.  The pursuer described having visions of her son walking in the street with his backpack on.  She then sees a vehicle and her son being hit into the air and ending up on the other side of the road.  She described having dreams and nightmares where she sees these images when she awakes.  She describes feelings of fear when she was walking in the street and feelings of guilt at being unable to protect her son.  She had thoughts of him “every other day”.  She switches from thoughts of seeing him laughing and walking to lying on the road.  After her son’s death she did not wish to be alone.  Family members stayed with her.  She has been unable to continue in her ordinary work pattern and obtains no enjoyment from her employment.  She finds it very difficult to work with young children and witnessing families together.  She felt that her relationship with her daughter also suffered over this period.  She was unable to attend the trial of the driver and suffered considerable distress because of the number of postponements and delays in the trial.  The pursuer felt her personality had changed.  She lost self‑esteem and confidence.  After her son’s death she did not want to continue to live.

[10]      Further detailed information was provided by the psychiatrists and psychologists who saw the pursuer.  No issue was taken with the credibility and reliability of the pursuer. 

[11]      One police officer was called to give evidence at the start of the proof to set the scene.    This was prior to the pursuer’s evidence.  Police Constable Michelle Murphy had been called to the scene immediately after the crash.  She attended as a traffic officer with the Road Policing Department at approximately 1645 hours.  Already at the scene were fire crew, paramedics and other members of the Road Policing Department.  Constable Murphy took responsibility for the “accident” log, process number 7/1/1.  This document was agreed in one of the joint minutes of admissions.  The report discloses the names of witnesses.  It records the arrival of the photographer at 1800 hours and the removal of the body of the deceased at 1820 hours.  This officer left the scene at approximately 1800 hours to attempt to trace family members.  She and a colleague went to the home address of the pursuer and spoke to her daughter Stephanie.  PC Murphy’s colleague, PC Morrison, took a note of a contact number and a personal mobile number for the pursuer.  The officers returned to the locus.  On return there a staff member from the sports centre exited and approached the police officers to say that there was a woman inside who was “really upset” and who believed that her son had been involved in the traffic “accident”.  This evidence, in my view, would tend to indicate that the pursuer believed that her son was involved in the crash prior to being told about it.  The officers entered the sports centre and were directed to the canteen.  PC Murphy saw Mrs Young who appeared to be very upset.  She repeatedly said, “I know it’s my boy”.  The officers had given the pursuer no information by this time.  When the group was shown to an office the police officer noted that the pursuer kept repeating the same words over and over again.  PC Morrison asked the pursuer if her son had a tattoo.  She was able to confirm the identity of the deceased.  She noted that the pursuer was by this time hysterical and screaming words loudly.   The officer was very concerned for her.  At times the pursuer had her head down.  Then she would get up and pace the floor. The officer was of the view that the pursuer could not leave the office as she was not in a fit state to go outside.  Some time was taken up trying to calm her down.  Eventually, although still upset, she was sufficiently composed for the officers to take her home.  They allowed her friend to come with her.  As they left the gymnasium, an area which was cordoned off was visible as well as the damaged wall but the officer did not believe that the damaged vehicle could be seen, at least from her position at that time. 

[12]      The officers took the pursuer to her home to be with family.  Thereafter they accompanied her to the mortuary.  The officer had little memory of the pursuer’s identification of her son.

[13]      Finally the officer spoke to the photographs of the crash scene shown in process number 6/19.  These photographs disclose a very badly damaged vehicle which, from the photographer’s perspective, can be seen clearly from the roundabout area.  The entrance to the gymnasium is immediately to the left in photograph four. 

[14]      I should comment that as the officer was describing her meeting with the pursuer in the gymnasium she became emotional and had to be given a few moments to compose herself.  This was somewhat surprising, standing the officer’s 11 years’ service.  When questioned about this, she said, “I have not stopped thinking about that wee family since”.  The officer had been responsible for notifying families of road deaths for some years but clearly this particular notification had had a particular impact on her.

[15]      I found the officer a credible and reliable witness.  I was of the view that her emotional response when giving evidence was genuine.

[16]      The rest of the evidence consisted of opinion evidence from a psychologist, Dr Ann Harper and the psychiatrist Dr Jane McLennan, both called on behalf of the pursuer.  Professor Christopher P L Freeman, a consultant psychiatrist, gave evidence for the defenders.  Each spoke to their respective reports lodged in process, productions 6/1, 6/14, 6/17 and 7/2.  These reports were supplemented by their parole evidence.  The view which I have formed, after hearing all of this evidence, was that, in very general terms, the medical witnesses were agreed that the pursuer had suffered a serious psychiatric/psychological injury as a result of the death of her son.  There was some dispute as to how this should be “labelled”.  The medical witnesses for the pursuer diagnosed post-traumatic stress disorder complicated by symptoms of a depressive disorder and the complex grief response.  Professor Freeman, on the other hand, in his report at process number 7/2/1, came to the view that the pursuer was not suffering from post-traumatic stress disorder.  However when giving evidence and particularly when more detail was provided to him in the course of cross examination, his position appeared to be that post-traumatic stress disorder in the circumstances was a reasonable diagnosis.  He said, “I shall not argue with that”.  He was of the view that it was often difficult to label a particular psychiatric disorder because of a complex mixture of symptoms.  All were agreed that the pursuer has symptoms of post-traumatic stress disorder to a greater or lesser degree.  Having regard to that general overview of the medical evidence it was really unnecessary for me to come to a definitive view as to which medical witness was preferable since it seemed to me that they were all to a greater or lesser extent in general agreement.  That being the case I do not propose to detail fully each of these witnesses’ evidence but to highlight evidence relating to the particular issues raised and which are relevant to the main, but narrow issue which I require to decide in this case, namely whether the pursuer is a secondary victim.  The psychiatric evidence is also relevant to the other issue I have to decide, namely the level of quantum under the separate heads of claim.

[17]      In addition to parole evidence, two Joint Minutes of Admissions were lodged.  These agreed a number of matters such as:- documents relating to the deceased, productions 6/9 and 10;  a victim statement provided by the pursuer for the purposes of the criminal trial of the driver, production 6/7;  medical records of the deceased and the pursuer, productions 6/18 and 6/3, 6/11 and 7/4;  the records of and a letter from COPE Scotland, productions 6/4, 6/8, 6/11 and 7/4; the police road crash and investigation reports, productions 6/6, 6/16 and 7/1; wages of the pursuer, productions 6/5 and 6/13;  her employment records, production 7/5; her periods off work; her reduced working periods; her past and future wage loss;  the hourly rate for services  and the value of past and future services provided to the pursuer by her family in terms of section 8 of the Administration of Justice Act 1982.  Professor Freeman’s report, production 7/2 was agreed as forming part of his evidence.

 

Psychiatric/psychological evidence
[18]      Dr Allison Harper is a chartered clinical psychologist based in Edinburgh.  She spoke to two reports, one dated 22 November 2012 and the second dated 11 November 2013.  She provided general evidence about specific treatments in relation to post-traumatic stress disorder.  It is unnecessary for the purposes of this opinion to summarise that evidence.  Dr Harper first saw the pursuer on 20 November 2012.  The pursuer provided a fairly detailed background history which included information about her response to the deaths of her father and husband and the impact of the loss of her husband on her relationship with her daughter.   She detailed the difficulties in her current relationship with her daughter as a result of David’s death.  The pursuer described having an extremely close relationship with both her children.  The pursuer provided Dr Harper with a detailed account of the events of 1 June 2010 leading up to viewing her son’s body in the mortuary.  That information is to a large extent contained in my previous summary of the evidence.  [19]        What is particularly relevant from that account is the state of the pursuer shortly before the death of her son being confirmed by the police.  Dr Harper stated that after the pursuer had noticed a message on her telephone from her daughter referring to the police, the pursuer had become panicky and had run screaming to the front desk of the gymnasium to ask the reception staff to see if David had been in that evening.

[20]      Dr Harper also described the psychological seqellae following the death of the pursuer’s son.  She described the grief response as having developed into significant depressive episodes.  As at November 2012 the pursuer had described herself as “marking time” with little motivation for anything.  The difficulties in her relationship with her daughter were causing the pursuer further distress.  She had feelings of causing annoyance to her daughter, while at the same time expressing the view that her only cause for living was her daughter.  Dr Harper noted feelings of passive suicide ideation.  There was evidence of significant symptoms of depression including pessimism about the future, feelings of guilt, self-dislike, agitation, indecisiveness, loss of energy, irritability and fatigue.  Dr Harper described the levels of depression as well within the severe range.  Dr Harper had access to a number of sources of information including the pursuer’s medical records and correspondence from COPE Scotland.  These records revealed instances of the pursuer experiencing flashbacks of the deceased lying in his coffin as well as persistent ruminations about her son.  She suffered sleep difficulties, disturbed sleep patterns, panic attacks, low mood and suicidal ideation, inability to obtain work or undertake daily living activities such as shopping and eating.  Dr Harper at that time considered that the pursuer was suffering from complex grief response with severe depressive illness and anxiety.  Dr Harper saw the pursuer again in November 2013 and provided a second report.  Because of a change in the criteria required, Dr Harper was now of the view that the pursuer met the diagnostic criteria for post-traumatic stress disorder.  Dr Harper noted that the pursuer described recurrent, involuntary and intrusive distressing memories of the traumatic event.  She recalled seeing the car damaged and described it as “mangled”.  She still had distressing memories of this.  She had recurrent distressing dreams in relation to her son and although these did not include dreams about his death, they were characterised by separation from her son.  The pursuer repeated to Dr Harper that she had recurrent flashbacks of her son in his coffin and imaginings of injuries on his body which however she did not see.  She displayed symptoms of avoidance and unwillingness to approach the area in which her son died.  She also tended to avoid her son’s friends and avoided speaking about her son to family members.  Dr Harper described the pursuer as expressing significant alterations in cognition and mood which were characteristic of post-traumatic stress disorder.  The pursuer described feelings of fear when out walking in the street and seeing vehicles approaching her.  She expressed feelings of guilt in being unable to protect her son and described symptoms of pervasive self-loathing.  Dr Harper expressed this as more than grief.  As at the stage of her second consultation with the pursuer Dr Harper was of the view that the pursuer was suffering from post-traumatic stress disorder alongside a secondary depressive illness.  Dr Harper emphasised the significance in the present case of the fact that the pursuer had seen the mangled vehicle prior to her entry to the gymnasium and her consequent anxiety which increased prior to the confirmation of her son’s death. 

[21]      Dr Harper was cross examined on a number of issues but particularly her change in diagnosis between the first and the second report.  Dr Harper had acknowledged this in evidence in chief but in cross examination she emphasised that she had not seen or appreciated the terms of the report from COPE (process no. 6/8).  In her view this clearly disclosed symptoms of post-traumatic stress disorder and she emphasised that in the course of the first interview with the pursuer she was clearly depressed and “grief stricken”.  Dr Harper felt that the pursuer was rather defensive and talking about “different things”.  Had she seen the report from COPE Dr Harper would have prompted different questions to determine whether there were symptoms of post-traumatic stress disorder.  She had concentrated on the symptoms as disclosing a grief response.  At the second consultation the pursuer had revealed more information and one of the factors was the pursuer saying “I still see the car”.  Factors such as this and the change in the diagnostic criteria for post-traumatic stress disorder had led Dr Harper to alter her diagnosis.

[22]      The third and final witness for the pursuer was Dr Jane McLennan a consultant psychiatrist.  She had examined the pursuer at Edinburgh on 29 November 2013 and provided a report, process number 6/17.  In evidence she spoke to that report and amplified it with further detail, particularly in relation to the pursuer’s account of the day of the incident.  Dr McLennan dealt with the pursuer’s history including her reaction to previous deaths in her life.  She described the manner in which the pursuer had been told of her husband’s death many years before.  That had, in Dr McLennan’s view, predisposed her to having an adverse psychological reaction to a further traumatic loss.  The witness described a series of events leading to the pursuer’s knowledge of the death of her son, much of which is very similar to the summary of the evidence previously provided.  What was particularly significant in my view was the reference to the pursuer being “preoccupied by the accident” after she entered the gym.  She was already worried while undertaking her class and became increasingly worried when she heard that a young man had been killed.  Dr McLennan stated that the pursuer had told her that she ran out of the class very worried and by the time that she had got to the desk to ask staff members to check whether her son had entered the gymnasium she described the pursuer as being “almost hysterical”.  She was screaming and desperate to see her son.  Dr McLennan described the pursuer’s friend attempting to comfort her, all of which occurred prior to the police entering the gymnasium.  She described her as being in a state while being taken to an office prior to the police explaining to her of her son’s death.  Dr McLennan described the pursuer as very distraught when relating these events.  The witness emphasised the fact that the pursuer had seen the motor vehicle prior to entry to the gym and her perception was that any person involved could not have survived the incident.  Her concerns had reached “a pitch” when she saw the text about the police attempting to contact the family.  Dr McLennan was of the view that these facts were significant because her reaction was not simply to being told about her son’s death.  Dr McLennan also described the pursuer’s visit to the mortuary as revealed by the pursuer.  She advised that the pursuer saw her husband’s face and her belief was that he had come to take David back with him.  This was momentary as she then was able to identify her son.  The pursuer had apparently become hysterical at the mortuary and was crying and screaming.  The pursuer had described wanting to die had it not been for the existence of Stephanie her daughter.  She had wished to join her son. 

[23]      Dr McLennan then described the serious symptoms from which the pursuer subsequently suffered such as being constantly tearful, difficulty coping, inability to sleep, inability to look after herself, not wishing to undertake ordinary tasks, drinking more alcohol, nightmares, intrusive thoughts, exhaustion, low mood, feelings of desolation, feelings of there being nothing left in life and her no longer being interested in family.   She would see her son smiling and then his face on the mortuary screen.  She could see in her mind’s eye her son being thrown up in the air.  Dr McLennan described these as unpleasant, intrusive images rather than flashbacks.  [24]          The witness described the symptoms associated with post-traumatic stress disorder.  She identified specific symptoms suffered by the pursuer as fitting in with that diagnosis.  I do not intend to detail all of this because of the general agreement in relation to the serious psychological injury suffered by the pursuer. 

[25]      The final witness to be called and the only witness for the defender was Professor Freeman.  Helpfully his report, process no. 7/2, was agreed in the joint minute insofar as being treated as part of his evidence.  Professor Freeman is a highly experienced consultant psychiatrist and psychotherapist.  His qualifications are fully detailed in his report in appendix A.  He has two areas of particular expertise: eating disorder and post-traumatic stress disorder.  He too provided a summary of the pursuer’s account of the lead up to her knowledge of her son’s death and it is very similar to previous accounts although in my view not as detailed as that of Dr McLennan.  Professor Freeman described the impact on the pursuer since the death.  He did not agree initially that the pursuer suffered from post-traumatic stress although, as I understood his evidence, he accepted that she had a major depressive disorder.  He confirmed that there were also symptoms of post-traumatic stress disorder. 

[26]      What I took from his evidence was that he concentrated more on the symptoms requiring to be treated rather than labelling an illness with a particular diagnosis.  In particular, when in the course of cross examination a summary of the pursuer’s evidence and a summary of some of the effects on the pursuer were put to him, Professor Freeman said that he was “more than happy” to concede that post-traumatic stress disorder was a reasonable diagnosis.  He said, “I shall not argue with that”.  My impression was that some of the consequences to the pursuer were not known to Professor Freeman, such as intrusive images of seeing her son being thrown into the air and suffering distressing dreams.  I should make clear that there was no suggestion that the pursuer had invented these symptoms.  None of the psychiatrists expressed concerns at any apparent slight discrepancy between the history given by the pursuer of her past or her description of the circumstances surrounding her son’s death.  The discrepancies existed more to do with less detail being provided to a medical witness rather than any dramatic differences in the accounts. 

[27]      All of the professional witnesses acknowledged the very close relationship which the pursuer had with her son and that, as at the date of their examinations, the pursuer was still suffering from a significant depressive disorder and prolonged grief.  Both Dr McLennan and Professor Freeman were of the view that the loss of an adolescent or young adult child was, for anyone, the hardest loss to bear and was indeed worse than losing a partner or young child.  It was clear from their respective descriptions of symptoms suffered by the pursuer that it had had a major impact on her life and had affected her relationship with her daughter to a significant extent.  As I understood the evidence the pursuer will require continued psychological/psychiatric treatment.

 

The issues

[28]      The pursuer seeks damages under several separate heads of claim.   She argues that she comes within the definition of a secondary victim and is thus entitled to damages for personal injury.  This would include a claim for solatium; wage loss; cost of psychology treatment; and a claim under section 8 of the Administration of Justice Act 1982.  She also seeks damages as mother of the deceased for distress, grief and loss of society under section 4(3)(b) of the Damages (Scotland) Act 2011; loss of financial support; and loss of personal services in terms of section 9 of the Administration of Justice Act 1982.  Quantum was agreed under a number of these heads.

[29]      As I have indicated there did not seem to me to be any real disagreement between the parties that the pursuer has suffered a serious psychological injury as a result of her son’s death in this tragic incident.  Apart from quantum, the main issue in dispute was what was the direct cause of that psychological injury:  was it the shock of coming upon the aftermath of the incident or was it as a result of the shock of being told that her son had died?  If the injury was as a result of coming upon the aftermath of the crash scene and if the pursuer satisfied the other elements required then she would fall within the definition of secondary victim.  If on the other hand she suffered injury as a result of the shock of being told about her son’s death then she would fail on one of the main heads of claim.

 

Secondary victim

Submissions by pursuer
[30]      The pursuer asserts that she is a secondary victim of the car crash.  In the pleadings it is averred that she had close ties of love and affection with the primary victim, her son.  It is averred that she was present in the immediate aftermath of the incident, having passed the scene shortly after its occurrence and, as the evidence disclosed, was able to see the badly damaged motor vehicle.  Senior counsel for the pursuer summarised the evidence as follows.  The pursuer had walked past the scene of the accident where her son was killed although she had already been diverted in her car and was unable to park at the gymnasium so “she knew something was up”.  She saw and walked past the police cordon and was aware of police cars at the scene.  She saw the vehicle badly damaged.  She was of the view that someone must have been killed, having regard to the extent of the damage to the car.  She had had the experience of the loss of her husband so her reaction was to empathise with the family.  Over the course of the next short while, worries began to appear to the effect that the person killed might have been her own child.  As she queued to enter the gym she could not see her son as she had expected.  She overheard a friend saying that a 20 year old man had been killed and that had made her think more of her own son.  She undertook the warm-up session in her exercise class “in an increasingly panicked state”.  She left the class and checked her phone and on doing so saw that there were six missed calls from her daughter and a text message.  The text revealed that the police had been at the house and she was requested to go home.  She immediately thought the worst but there was “still hope”.  She ran to the reception desk to ask them to check the system to see if her son was there and she requested that her son be paged.  She was so agitated that one of the staff went to the scene of the crash and told the police that she thought someone in the centre might have been the mother of the person killed.  The police entered and her worst fears were confirmed.  They then asked about a tattoo and advised the pursuer that her son was indeed dead.

[31]      I take no issue with this summary of the lead up to her being told about her son’s death.  The summary provided by Mr Clarke was put to Professor Freeman and there appeared to be no disagreement with that summary.

[32]      I would refer to my previous more detailed summary of the evidence.  The impression I was left with at the end of all of the evidence was that the pursuer was already in a near hysterical state by the time the police had entered.    

[33]      Mr Clarke acknowledged at the early stages of his submission that in relation to post-traumatic stress disorder or, as referred to in the older cases, “nervous shock”, the law had traditionally been reluctant to compensate those who suffer from that condition in circumstances where they are not themselves either injured or exposed to physical danger (Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310).  He submitted that the reasoning in Alcock and the authorities which followed had been adopted into Scots law.  In support of that submission he referred to the case of Robertson and Rough v The Forth Road Bridge Joint Board [1995] SC 364, a case of two workmen suing for damages for nervous shock suffered as a result of witnessing the death of a fellow workman.  Mr Clarke quoted passages from the Opinion of Lord President Hope at page 365 – 367.  In particular at 306-7 he said:

 

“In Alcock v Chief Constable of South Yorkshire Police at page 396H Lord Keith of Kinkel said of this type of case, which he described as that of a secondary sort of injury brought about by the infliction of physical injury, or the risk of physical injury, upon another person that, in addition to reasonable foreseeability, liability for injury in the particular form of psychiatric illness must depend also upon a requisite relationship of proximity between the claimant and the party said to owe the duty.  He referred to the description by Lord Atkin in Donoghue v Stevenson at page 44 of those to whom a duty of care is owed as being ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’.  He continued at page 397B-C ‘The concept of a person being closely and directly affected has been conveniently labelled ‘proximity’, and this concept has been applied to certain categories of cases, particularly those concerned with pure economic loss, to limit and control the consequences as regards liability which would follow if reasonable foreseeability were the sole criterion.  As regards the class of persons to whom a duty may be owed to take reasonable care to avoid inflicting psychiatric illness through nervous shock sustained by reason of physical injury or peril to another, I think it sufficient that reasonable foreseeability should be the guide.

 

I think that Lord Oliver of Aylmerton at page 406G-H was indicating his acceptance of this approach, when he said of the question whether the defendant owed a duty in tort to the plaintiff to avoid causing the psychiatric illness of which each of them complained:

 

‘In essence this involves answering the twin questions of (a) whether the injury of this sort to each particular plaintiff was a reasonable foreseeable consequence of the acts or omissions constituting the breach of duty to the primary victim and (b) whether there existed between the defendant and each plaintiff that degree of directness of proximity necessary to establish liability.’”

 

[34]      Mr Clarke also referred briefly to the case of Keen v Tayside Contracts 2003 SLT 500 and North Glamorgan NHS Trust v Walters [2003] PIQR 232.  In the latter case Ward LJ gave a leading judgment and said at paragraph 35:

“In my judgment the law as presently formulated does permit a realistic view being taken from case to case of what constitutes the necessary ‘event’.  Our task is not to construe the word as if it had appeared in legislation but to gather the sense of the word in order to inform the principle to be drawn from the various authorities.  As a word, it has a wide meaning as shown by its definition in the Concise Oxford Dictionary as: ‘An item in a sports programme, or the programme as a whole.’ It is a useful metaphor or at least a convenient description for the ‘fact and consequence of the defendant’s negligence’, per Lord Wilberforce (in McLoughlin v O’Brian at page 422), or the series of events which make up the entire event beginning with the negligent infliction of damage through to the conclusion of the immediate aftermath whenever that may be.  It is a matter of judgment from case to case depending on the facts and circumstances of each case.”

 

Mr Clarke submitted that Clarke LJ agreed with the reasoning of Ward LJ at paragraph 50 when he said that he had recognised that the search for principle in this area had been called off in the Alcock case and that it was now too late to go back on the established control mechanisms.  Nevertheless he did not think that these mechanisms should be applied “too rigidly or mechanistically” and at paragraph 52 he said that this was “a developing area of the common law”. 

[35]      I was directed to the particular facts in the case of McLoughlin v O’Brian [1983] 1 AC 410.  The plaintiff’s husband and children were involved in a road accident.  The plaintiff was at home and was told about the accident by a neighbour some two hours after it had occurred.  She was taken to the hospital and there she learned that her daughter had been killed.  She also witnessed directly the nature and extent of the injuries of the rest of her family.  She raised an action claiming that she had suffered severe shock resulting in psychiatric illness.  Her claim failed at the trial and the subsequent appeal to the Court of Appeal.  The House of Lords, however, allowed her appeal.  I was also referred to the case of Galli-Atkinson v Sudhaker Seghal [2003] EWCA Civ 697.  The action was raised by the mother of a 16 year old girl killed by a car which mounted the pavement.  The girl suffered horrific injuries and died at the scene.  Her father had attended the locus looking for his child as she had not arrived home when expected.  He became aware of the accident.  He was prevented from proceeding to the location at which he expected his daughter to be because of a police cordon.  The father learned of his daughter’s death from police officers.  The deceased’s mother also attended the locus, unaware of anything wrong.  She met her husband who advised her of the incident.  The plaintiff attempted to cross the police cordon stating that she was looking for her daughter.  She learned of her daughter’s death.  She became hysterical and collapsed.  A police officer described her screaming as unforgettable.  She was later taken to the mortuary where she viewed her daughter’s body.  She suffered an extreme reaction.  She failed in her initial claim.  At first instance the recorder, when considering the issue of what constituted the “aftermath” of the accident, had excluded from consideration what occurred in the mortuary.  The Court of Appeal held that what occurred in the mortuary could not be separated from what had occurred up to then.  The court was influenced by the nature of the psychiatric evidence.  It was however acknowledged that simply being told about the accident was not sufficient to bring an individual within the ambit of “secondary victim”.  The appeal was successful in the circumstances of that particular case.   

[36]      In relation to the specific facts of the present case senior counsel detailed the evidence of what occurred, emphasising the evidence of the police officer who first spoke to the pursuer, PC Murphy.  There was no doubt that there was a very close relationship between the pursuer and her son David.  He referred to passages in the psychiatrists’ evidence.  He submitted that Dr McLennan in particular was of the view that the series of events leading up to the pursuer’s knowledge that her son had been killed were all part of the same episode and had a material effect on the pursuer’s psychiatric condition.  Dr McLennan was of the view that the relevant events, so far as the pursuer was concerned, commenced with seeing the scene of the wrecked car and culminated with the police telling her that her son was dead.  That was all part of the same episode and had a material effect on the pursuer’s psychiatric condition.  Dr McLennan was of the view that the pursuer’s perception of what occurred commenced when she passed the scene of the crash.  She could see police cars and she immediately thought that whoever was involved was probably dead or seriously injured.  For her it brought back serious memories of her husband, thus making her more predisposed to serious shock reaction.  Regard should be had to the manner in which she was told of the death.  Her previous experiences, depressive illness and anxiety disorder predisposed her to having “catastrophic thoughts”.  The manner of her becoming aware of her son’s death up to the point at which she was told of her son’s death were all part of the aftermath of the incident.  Mr Clarke submitted that in the end of the day the psychiatric evidence was not really in dispute.  He submitted that what was clear was that there was a continuous event from seeing the scene to the police confirming the death of David.  The pursuer’s psychiatric condition directly related to what she saw at the scene and what occurred thereafter. 

[37]      I was invited to take a sensible approach as to what was the “immediate aftermath” and on the facts and circumstances of the present case I should conclude that the pursuer fell within the definition of a secondary victim. 

 

Submissions by defender
[38]      Senior counsel for the defender conceded that the pursuer had suffered a “terrible loss” for which she was entitled to sympathy but sympathy was not the determining factor in the present case.  The pursuer was entitled to a substantial award for “loss of society” and other losses covered by the Damages (Scotland) Act 2011 but she did not qualify for a claim at common law as a secondary victim.  Thus she was not entitled to claim for pecuniary loss.  Her claim for loss of society could not include any element in relation to pure psychiatric injury.  Ultimately the main question for the court was whether the pursuer’s psychiatric injury, however it was to be described, was caused by witnessing the aftermath of the incident in which case she succeeded or simply by being told about the death by others including the police in which case it was submitted she failed. 

[39]      Mr Milligan submitted that the pursuer could only be classed a secondary victim if she satisfied the various control mechanisms set out in the cases to which I was referred by both parties.  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.  The pursuer would have to demonstrate that there was a close tie of love and affection between the secondary victim and the injured person; that the secondary victim must have been present at the accident or its immediate aftermath; and the secondary victim’s psychiatric injury must have been caused by direct perception, namely through her own unaided senses, of the accident or its immediate aftermath (McLoughlin v O’Brian).  I was referred to passages in Alcock v Chief Constable of South Yorkshire.  It was submitted that the crucial point was that the various hurdles placed before claimants were not based on any legal principle but rather policy and were specifically designed to restrict the exception to the general rule that a secondary victim could not recover damages.  It was submitted that it was clear from the authorities, particularly the case of Alcock v Chief Constable of South Yorkshire that simply being told about the death of a close relative is not sufficient to bring a pursuer within the strict definition of a secondary victim.  This restrictive approach was confirmed in a further House of Lords case also arising out of the Hillsborough disaster as was Alcock, namely,  Frost (White) v Chief Constable of South Yorkshire Police [1999] 2 AC 455.  In this case it was recognised that the law had developed in an unprincipled and unsystematic way for policy reasons and should not be extended further without parliamentary intervention (Lord Steyn at 500B and Lord Hoffman at 502D).  I was referred to a particular passage of Lord Steyn at 500B-D under the heading, “Thus far and no further”, as follows:

“My Lords, the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify.  There are two theoretical solutions.  The first is to wipe out recovery in tort for pure psychiatric injury.  The case for such a course is being argued by Professor Stapleton.  But that would be contrary to precedent and,  in any event, highly controversial.  Only Parliament could take such a step.  The second solution is to abolish all the special limiting rules applicable to psychiatric harm.  That appears to be the course advocated by Mullany and Handford, Tort Liability for Psychiatric Damage.  They would allow claims for pure psychiatric damage by mere bystanders: see (1997) 113 L.Q.R 410, 415.  Precedent rules out this course and, in any event, there are cogent policy considerations against such a bold innovation.  In my view, the only sensible general strategy for the court is to say thus far and no further.  The only prudent course is to treat the pragmatic categories as reflected in authoritative decisions such as the Alcock case, [1992] 1 AC 310 and Page v Smith [1996] AC 155 as settled for the time being but by and large to leave any expansion or development in this corner of the law to Parliament.  In reality there are no refined analytical tools which will enable the courts to draw lines by way of compromise solution in a way which is coherent and morally defensible. It must be left to Parliament to undertake the task of radical law reform.”

 

[40]      Mr Milligan also referred to the facts and circumstances in the case of Ravenscroft v Rederiaktiebolaget Transatlantic [1992] 2 All ER 470 and Taylorson v Shieldness Produce Ltd [1994] PIQR 329.  In Ravenscroft the plaintiff had learned about her son’s death on arrival at the hospital and suffered a prolonged depressive reaction in which she was unable to come to terms with her son’s death and was thereafter barely able to function.  In Taylorson the parents of a 14 year old boy were told about his accident soon after it had occurred.  They arrived at the hospital and witnessed the boy’s deteriorating condition over a period of three days.  They claimed damages for shock and mental injury.  The claim in each of these cases was refused.  I was also referred to Taylor v Somerset Health Authority [1993] PIQR 262.  The analysis of this case was expressly approved by Lord Dyson MR in Taylor and another v A Novo (UK) Ltd [2013] 3 WLR 989 at 1004D-E.  At pages 992B‑D Lord Dyson, while approving the analysis of the judge at first instance said:

“In a careful and thoughtful judgment, the judge helpfully said that it was clear from the case law that, in order to succeed as a secondary victim, Miss Taylor had to satisfy the following seven requirements: (i) her injury was reasonably foreseeable; (ii) she was a close relative of and had a close emotional relationship with the primary victim; (iii) she had suffered a recognised psychiatric injury; (iv) the injury was caused by the actions of the defendant; (v) the injury was caused by ‘shock’ as a result of a sudden perception of the death of, or risk to or injury to, the primary victim; (vi) she was either present at the scene of the accident which caused the death or must have been involved in its immediate aftermath (both physical and temporal proximity being required); (vii) she must have perceived the death, risk of injury with her own senses.”

 

Mr Milligan also submitted that notwithstanding repeated judicial criticism of the current law in this area, a recent proposal for legislative reform in Scotland as proposed by the Scottish Law Commission Report (2004) was rejected by the Scottish Government in December 2013.  I was referred to Civil Law of Damages: Issues in Personal Injury, Scottish Government response to the consultation, December 2013 at page 21. 

[41]      Mr Milligan then turned to the factual background and repeated, to some extent, the summary of evidence provided above.  There was of course a different emphasis, as may become apparent.  The collision between the defender’s vehicle and the deceased occurred at approximately 16.30 hours.  Police attended the scene shortly thereafter and the witness PC Murphy attended at approximately 16.45.  By that time there was already a police cordon around the scene and a number of emergency vehicles present including an ambulance.  PC Murphy left the scene to seek out the pursuer.  That time was recorded as occurring at approximately 17.36.  Officers Murphy and Morrison attended the deceased’s home but could only speak with the pursuer’s daughter who attempted to phone her mother repeatedly.  The pursuer had arrived at the gymnasium round about 18.00 hours, having parked her vehicle in Vancouver Road.  Mr Milligan submitted that she had seen debris from the accident but did not think that her son or daughter was involved. 

[42]      I would not agree with this part of the summary since it was apparent from the evidence which was unchallenged that the pursuer saw the damaged motor vehicle rather than simply debris from the accident.  I agree that the pursuer did not at that stage believe that her son or daughter was involved although it is perhaps more accurate to say that initially she was relieved that they were not involved. 

[43]      Mr Milligan submitted that, at the leisure centre, the pursuer was told by a friend that a 20 year old boy had been involved in the incident and that news caused her concern and alarm but at that stage she had no reason to believe it was her son.  She went to her first exercise class at about 18.00 hours.  Mr Milligan suggested that the police photographs produced in court, 6/19 of process, do not show “a traumatic and alarming scene”.  Approximately 10 minutes into her exercise class the pursuer noticed missed calls and a text message to the effect that the police were looking for her urgently.  She became concerned.  She saw the police arriving at reception and became increasingly concerned.  It was only when the police told her that her son was dead that she became hysterical and started screaming.  Mr Milligan was of the view that PC Murphy was “explicit” in her evidence about this.  The pursuer only became hysterical after being told about the death accordingly that was the cause of the shock.  The pursuer was then taken back to the house where she had the support of various relatives and at about 20.00 hours she attended Glasgow City Mortuary accompanied by the police and various relatives.  She identified the deceased through a video screen. 

[44]      Mr Milligan then addressed me on the psychiatric evidence.  He submitted that the pursuer’s shock was caused by being told about the death not by witnessing the events or even the aftermath.  Although she did see the aftermath, she did not realise at the time that her son had been involved, accordingly she did not suffer any shock as a result of seeing the aftermath.  If the aftermath assumed any significance it did so only retrospectively in the same way as the television and news reporting of the Hillsborough disaster (Alcock).  The nature and extent of her condition has not been materially contributed to by seeing the aftermath.  It was not the sight of the “accident” that “violently agitated her mind”.  It was submitted that in law the pursuer was in no better position than the vast majority of parents who lose their children through the fault of another.  In these circumstances the pursuer did not come within the classification of a secondary victim and accordingly was not entitled to damages for personal injury.

 

Decision re “secondary victim”

[45]      The main facts of this case were not in dispute.  No issues of credibility or reliability were raised.  The relative expertise of the professional witnesses was raised but I am not persuaded that anything turned on that.  As I have indicated previously, by the end of the proof, the medical witnesses were, in my view, agreed that the pursuer had suffered a serious psychological injury.  There is no doubt that that injury resulted from the tragic loss of her son.

[46]      The main question for me was whether the pursuer suffered a shock and subsequent injury as a result of the trauma caused by coming upon the aftermath of the crash, as opposed to simply being told about the death of her son. 

[47]      As submissions progressed, counsel appeared to be agreed that there is no clear legal principle to be applied in determining who is or is not a secondary victim.  (Frost v Chief Constable of South Yorkshire Police, Lord Steyn at 500B-D.)  The facts of the cases to which I was referred supported that agreed view.  What was clear however is that the courts have adopted a restrictive approach to the determination as to who falls within the definition.  Strict control mechanisms have been considered necessary and applied.  This was based principally on policy considerations.

[48]      While an analysis of the facts of the various cases to which I was referred seem to me to be rather contradictory in so far as the outcome was concerned, I found the recent analysis of the relevant law in the case of Taylor v A Novo UK Ltd of assistance.  Lord Dyson set out the control mechanisms identified in Alcock and applied them to the facts.  They were as follows:- Alcock, pgs. 411-412, F-H

“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 injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim.  Lastly, in each case there was not only an element of physical proximity to the event but a close temporal connection between the event and the plaintiff's perception of it combined with a close relationship of affection between the plaintiff and the primary victim.  It must, I think, be from these elements that the essential requirement of proximity is to be deduced, to which has to be added the reasonable foreseeability on the part of the defendant that in that combination of circumstances there was a real risk of injury of the type sustained by the particular plaintiff as a result of his or her concern for the primary victim.”

 

[49]      Having regard to the control mechanisms set out above and applying them to the facts of the present case I am of the view that the pursuer in the present case does come within the class of secondary victim.  The pursuer certainly came upon the aftermath of the accident.  She saw the very badly damaged car up against the tree.  Mr Milligan suggested that the photographs produced in court did not show “a traumatic and alarming scene”.  Had he not invited me to take that view, I might not have commented, but I have to say that I disagree with him.  Those photographs show a horrific scene.  Be that as it may, it is not my view that is important but it is that of the pursuer at the time at which she saw the vehicle.  The pursuer stated that the state of the car “affected me”.  There is no doubt that she was affected by what she saw.  She had appreciated that the damage to the vehicle was such that someone must have died.  She thought that there had been a car crash between vehicles.  She began to feel empathy toward the relatives of the victim.  She stated, “I have been through a grief like that.”  It was, on the evidence, not long before she began to realise that it might have been her son who was involved and that was before her son’s identity was confirmed by the police.  The parole evidence from the pursuer, taken together with the evidence as to what she told the medical witnesses and the evidence from the police officer all lead me to the conclusion that, before David’s identity was confirmed, she already had a very strong suspicion that her son had been involved in a serious incident with the mangled vehicle she had just seen.  As I have earlier summarised, the evidence revealed that the pursuer had shouted to her friend that she thought David was the victim and she asked the staff at the gymnasium to check if he had arrived.  She was being already comforted by her friend.  If she had not already been in a distressed state why would a staff member have seen fit to exit the gymnasium to request that a police officer come and speak to the pursuer?  The officer described the pursuer as very upset when she entered.  When the pursuer saw the police she was shouting to her friend to ask the police “is it David?”  She kept shouting that same phrase.  Dr McLennan said at this point she was nearly hysterical.  I appreciate that may be her interpretation of what the pursuer said to her but on the evidence which I heard, I was of the view that the pursuer was clearly very upset before she had had the death confirmed.    

[50]      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.  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.

[51]      If I understood the position of Mr Milligan, coming upon the aftermath of an accident means coming upon it in the full knowledge that one is aware of a relative or person of proximity’s involvement in it.  Otherwise one does not qualify to come within the definition of a secondary victim as one only learns of the relative’s involvement retrospectively.  Once again I find this an artificial distinction, however I do not need to form a view about that very narrow approach.  In the present case, the pursuer began to feel uncomfortable very shortly after viewing the wrecked vehicle; her suspicions about her son’s involvement began fairly soon thereafter; and she was distressed prior to her confrontation with the police who confirmed his identity.  Looking at the series of event taken together with the other facts of this case I have come to the view that, after applying all of the relevant control mechanisms, the pursuer should be classed as a secondary victim.

 

Quantum

[52]      I now turn to the issue of quantum.  Counsel, helpfully, provided additional written submissions together with valuations under the separate heads.   Junior counsel addressed me on these aspects on behalf of the pursuer.  

 

Fatal Claims

[53]      Parties were agreed that sums were due to the pursuer under this general head.  There was however no agreement as to the appropriate sums.  There was significant disparity between parties.

 

Distress grief and loss of society – s. 4(3)(b) Damages (Scotland) Act 2011

[54]      Subsection (3) is in the following terms

"(3)       The sums of damages are––

(a) such sum as will compensate for any loss of support which as a result of the act or omission is sustained, or is likely to be sustained, by the relative after the date of A's death together with any reasonable expenses incurred by the relative in connection with A's funeral, and

(b) such sum, if any, as the court thinks just by way of compensation for all or any of the following––

(i) distress and anxiety endured by the relative in contemplation of the suffering of A before A's death,

(ii) grief and sorrow of the relative caused by A's death,

(iii) the loss of such non-patrimonial benefit as the relative might have been expected to derive from A's society and guidance if A had not died".

 

The terms of subsection (4) are also relevant

"(4) The court, in making an award under paragraph (b) of subsection (3) is not required to ascribe any part of the award specifically to any of the sub-paragraphs of that paragraph."

 

[55]      Mr Forsyth referred to guidance provided in a number of cases.  The first was Shaher v British Aerospace Flying College Ltd 2003 SLT 791 where parents sued for damages including a loss of society award for the death of their 19 year old son, killed in a flying accident. A jury awarded £35,000 to each parent.  The defenders reclaimed.  The Inner House considered that a fair and proper award to each parent was £20,000 (now worth around £27,600).  This case was, of course, dealt with under the previous legislation but at page 542 Lord Marnoch acknowledged the significant gulf between judicial and jury awards.  He had regard to what Lord Clyde had said in Girvan v Inverness Farmers’ Dairy 1998 SC(HL) 1,

‘In a system in which damages may be assessed in different cases either by a jury or by a judge it is essential, not only for the profession, but also for the court both in the making of awards and in the consideration of awards which have been made, for there to be available a convenient record of awards by juries as well as by judges.’

 

Lord Marrnoch continued,

 

‘Indeed, as Lord Hope of Craighead makes clear at page 7 of the report, the ‘overall philosophy’ of Scottish practice is that the assessment of damages is first and foremost a matter for a jury.  We ourselves, might go further and suggest that it is this very philosophy which gives to awards of damages in this area their essential legitimacy.  These awards, as it seems to us should in the end reflect the expectation of society which the legal profession serves and represents, rather than be simply an invention of that profession.  On the other hand, we see immediately the force of Lord Kingarth’s observations anent the danger of relying on only one jury award and the desirability of finding some consistent pattern as between a number of such awards.  In this connection, a wide disparity between jury and judicial awards was not, it seems, foreseen by the House of Lords in Girvan and, indeed, the assumption made by Lord Hope of Craighead at page 17 of the report is that jury and judicial awards would fall within the same ‘relatively narrow range of figures’.

 

In the result we find ourselves persuaded that the four bereavement awards made by juries in recent years do disclose a pattern which demonstrates that in this general area judges have indeed become ‘out of touch with awards made by juries in the exercise of their proper function’ – Girvan, per Lord Hope of Craighead at page 12. …  It follows that, while this court must do its best to make reasonable and fair compensation to the pursuers applying the limited guidance presently available, the sums actually awarded cannot, and should not, be regarded as being set in stone or, indeed, as representing any sort of tariff.  Further experience of jury awards may well show them to be either too low or too high.”

           

[56]      I was then referred to a number of cases in which jury awards had been made in late 2010 to early 2011 to parents of a young adult child:  Young v Advocate General for Scotland 2011 Rep LR 39, a jury award of £90,000 to a 54 year old parent of a 21 year old deceased; Dicketts v Advocate General for Scotland 2011 Rep LR 138 a jury award of £98,000 to each parent aged 62 and 68 of a 27 year old deceased; Swarbrick v Advocate General for Scotland 2011 Rep LR 40 jury awarding £100,000 to a 53 year old parent of a 28 year old deceased.  These cases, known as the Nimrod cases, related to members of the armed forces dying in Afghanistan.  Mr Forsyth then addressed me on “the development of judicial thinking” since 2011 by reference to a series of cases which display a general uplift of awards under this head of claim.  These were Bellingham v Todd  2011 SLT 1124, where Lord Woolman awarded £15,000 to each parent of a 40 year old man who died in a road traffic accident; Wolff  v John Moulds (Kilmarnock) Ltd  2012 SLT 231 where Lord Docherty considered the case of Bellingham v Todd and increased a solatium award on the basis that the court ought to consider both judicial and jury awards; and Thomson v Dennis Thomson Builders Ltd 2011 Rep LR 40 in which the 60 year old father of a 26 year old son was awarded £90,000 by a jury.  Thomson, along with other cases, was considered by the First Division in Hamilton v Ferguson Transport (Spean Bridge) Ltd 2012 SC 486 and the award in Thomson was held to be excessive.  A retrial was allowed. The Lord President commented however that in that case there appeared to be no special feature of the relationship between father and son which, Mr Forsyth emphasised, was quite different to the present case.  The Lord President also commented that the loss of society awards in Bellingham and Wolff were “markedly undervalued”.  I was also referred to the case of McGee &c v RJK Building Services Ltd 2013 SLT 428.  This case did not involve any award to the parent of a deceased child but concerned loss of society awards.  Lord Drummond Young used the case of Wolff as a starting point and increased those awards from between 50% for a son who was not as close as his siblings to the deceased to 100% for those siblings.  There was also an uplift of 60% for the wife of the deceased.  The deceased was aged 71 at the time.  Similarly in Ryder v The Highland Council 2013 SLT 847 Lord Tyre, using Bellingham as a guide, estimated a figure which amounted to approximately a 60% uplift. 

[57]      Having regard to the very close relationship which existed between the pursuer and her son and given the psychiatrists’ evidence that there is no greater trauma than for a parent to lose an adolescent child I was invited to award the sum of £100,000 under this head.

[58]      The defender invited me to award no more than £50,000.  The main thrust of Mr Milligan’s submission was to emphasise that there was a hierarchy of awards and he submitted that it was well established that the loss of a spouse was at the top of that hierarchy.  An award to a parent for loss of a son should not exceed an award for loss of a spouse.  He submitted that the starting point was the awards in Bellingham of £15,000 to each parent.  I was reminded that the jury award of £90,000 to a parent, considered in Hamilton v Ferguson Transport, was held to be excessive.  As I understood the submissions of Mr Milligan, the awards made in McGee v RJK Building and Ryder v Highland Council were not of assistance since McGee related to a high award to a widow which was at the top of the hierarchy while Ryder related to a son’s claim in relation to the death of his mother.  Using Bellingham as a starting point and having regard to the judicial comments in Hamilton v Ferguson Transport, an appropriate award would be £50,000.

[59]      At the request of parties the case was put before me by order on 30 May 2014.  The purpose was to bring to my attention two cases recently decided.  The first was a decision by Lady Wise in Currie v Esure Services Ltd 2014 CSOH 34 where a sum of £42,000 was awarded to each parent for the loss of their 25 year old son.  The second case concerned a jury trial of 23^rd May 2014, namely, Scott v Parkes, where a jury awarded £86,000 to a 51 year old mother of a 19 year old son, killed outright in a road traffic incident.  I was advised that in this case the pursuer sought between £80,000 and £100,000 while the defender argued that it should be between £30,000 to £45,000.  The decision in Currie has been reclaimed.

 

Discussion

[60]      In making an award under this particular head I acknowledge that I should have no regard whatsoever to the psychological injury suffered by the pursuer.  Any such injury can only be compensated under an award of solatium for a personal injuries claim.  I should also ignore any suggestion of abnormal grief response under this head. 

[61]      What I am entitled to consider however is the fact that the pursuer had a particularly close relationship with her son.  No doubt this was affected by her untimely loss of her husband and the resultant closeness which developed between mother and son thereafter.  To that extent it could be said, as suggested by Doctor McLennan, that the relationship between mother and son was unusual.  I mean no criticism of the pursuer in acknowledging this but I do so to emphasise how close that relationship must have been and to recognise the resultant significant loss which the pursuer must feel as a result of the death.  It is worthy of note that in the case of Thomson there was no suggestion of a particularly close relationship between the deceased and his father. 

[62]      While I agree with Mr Milligan that there is an accepted hierarchy in cases of loss of society awards, I cannot ignore the evidence in the present case of the exceptional and unusual closeness between the pursuer and her son.  Also I cannot ignore the evidence from both psychiatrists that, as far as the medical professionals are concerned, there is no greater loss than that of an adolescent son.

[63]      In the recent case of Currie v Esure, Lady Wise considers a number of the authorities put before me in the present case together with others not before me.  She acknowledges the longstanding concern about the disparity between judicial and jury awards.  She comments that, at the time when she made her decision, there was an “absence of any relevant jury awards“.  She also acknowledges that it would be dangerous to consider a single jury award.  I note that in that case senior counsel for the pursuer did not seek to rely on the Nimrod cases.

[64]      I agree with Lady Wise that there continues to be a significant disparity between judicial and jury awards.  It is clear however that I am entitled to and should look at relevant jury awards in coming to a view about an appropriate sum under this head while having regard to relevant previous judicial awards.  I was not invited to ignore the Nimrod cases.  In any event they are relevant in my view.  I do acknowledge however that these cases concerned the death of serving members of the armed forces in Afghanistan and that may have influenced the high level of awards made.  In addition there is now a recent jury award of £86,000 in Scott v Parkes.  I should, in my view, exercise a degree of caution in relation to this award as I do not know the precise facts of it nor do I know the relationship between mother and son.  However it does seem to me that the case is relevant as the age range is not dissimilar, nor is the nature of the incident which led to death.

[65]      I also recognise, having regard to the cases put before me, that there has been a general uplift of awards since Bellingham and Wolff.  However, there appears to be no consistent pattern of percentage increases.

[66]      In making an award under this head I have particular regard to the following factors: the general uplift which appears to have been applied since  Bellingham and Wolff; the Inner House’s comments in Hamilton v Ferguson Transport; the relevant judicial awards referred to above; the jury awards in the Nimrod cases, subject to my comments above; the recent jury award in Scott v Parkes; and especially to the very close relationship between the pursuer and the deceased as disclosed in the evidence.  [67]            Accordingly I am of the view that a reasonable award under this head would be £80,000.  I allocate half of that sum to the past, with interest at 4% from the date of the death. 

 

           

Loss of financial support

[68]      The pursuer estimated the deceased’s financial contribution to her to be approximately £1000 per annum.  I was invited to take “a broad brush” approach.  The claim under this head was assessed at £3,625 for past loss over three years and seven and a half months.  In respect of future loss of financial support, a multiplier of 19.95 should be used.  The calculation for that was £19,950.  The defender submitted that this head had not been properly established in the evidence and suggested a figure inclusive of interest to date of £2,500.

[69]      Section 7 of the Damages (Scotland) Act 2011 is in the following terms:

“7.1  Such part of an award under paragraph (a) of section 4(3) as consists of a sum in compensation for loss of support is to be assessed applying the following paragraphs –

 

a.  The total amount to be available to support A’s relatives is an amount equivalent to 75% of A’s net income,

b.  In the case of any other relative than –

 

(i)  a person described in paragraph (a) of the definition of ‘relative’ in section 14(1), or

(ii)  a dependent child,

 

the relative is not to be awarded more in compensation for the loss of support than the actual amount of that loss.”

 

Having regard to the terms of this section I agree with Mr Milligan that the pursuer has to prove the actual amount of the loss suffered. In the context of the relationship between mother and son it is perhaps understandable that the evidence was very sparse and general but there was no vouching for any loss of support.  The pursuer estimated that she might receive in the region of about £1000 a year in the form of presents and donations but as the evidence disclosed, the pursuer also supplied the deceased with money on occasion.  That is perhaps not unusual in a parent/young adult child relationship, but there was no clear evidence of “actual loss” of support.   I realise that, as the pursuer got older, the relationship between mother and son was such that there may well have been some financial contribution by the deceased but I am not able to assess that on the limited evidence before me. As a result I am not prepared to award the sums sought by the pursuer.  In the course of submissions senior counsel for the defender was prepared to concede the sum of £2,500 inclusive of interest.  In these circumstances I shall award that sum under this head.                                                                                                                                                                                                                                                                                                                                                                                                             

 

Personal services

[70]      I was again invited to take a “broad brush” approach to this head of claim.  The evidence disclosed that the deceased assisted his mother in a number of household tasks.  It was also submitted that given the very close relationship between mother and son there was an expectation that the deceased would continue to support his mother and undertake such services in the future.  Mr Forsyth estimated the sum per annum as £1250 allocating 3 years and 7.5 months for past loss namely a sum of £4530 with interest at 4% (£660), giving a total of £5190.  In respect of future loss, applying the Ogden table, a multiplier of 19.95 was suggested, resulting in a figure of £24,940.  Reference was made to Weir v Robertson Group Construction Ltd 2006 Rep LR 114 where a 36 year old husband carried out a number of household tasks and the sum awarded under this head was £1750. 

[71]      Mr Milligan made reference to the case of McGee where a lump sum award of £5000 with £1500 allocated to the past was made.  It was submitted that the deceased would have developed his own life and family and in the present case a multiplier of 12.94 was more appropriate in this case.

[72]      Taking a broad brush approach, as was suggested, and again having regard to the very special and close relationship that the pursuer had with the deceased, I have no doubt that the deceased would continue to support his mother in a very practical way until she was well into old age.  In these circumstances the sums sought by the pursuer and the multiplier applied is reasonable in this case and I am prepared to award the sum of £5,190 including interest for past loss and the sum of £24,940 using the multiplier of 19.95.

 

Damages for personal injury

Solatium

[73]      As I have previously indicated and as appears to be accepted by parties, this pursuer has suffered a serious psychological injury.  In the course of his evidence Professor Freeman conceded that post-traumatic stress disorder was not an unreasonable diagnosis in all of the circumstances.  Both medical witnesses for the pursuer were of the view that the pursuer had indeed suffered from post-traumatic stress disorder. On that basis I am prepared to treat this case in that way.  There is also no doubt on the evidence that the pursuer’s quality of life has been permanently affected.  It is also obvious that the pursuer suffers from an abnormal and complex grief response and a major depressive disorder.  Mr Forsyth suggested the sum of £40,000 while Mr Milligan suggested £15,000.

[74]      I was also referred to Collins v First Quench Retailing Ltd 2003 SLT 1220 where an award of £24,000 was made to the victim of an armed robbery suffering from post-traumatic stress disorder and a depressive disorder however it was suggested there that there was only “lasting disability” of a minor nature.  On present figures such an award would be £33,600.  I was also referred to the case of Ormsby v Chief Constable Strathclyde Police 2008 SCLR 783 where an award of £50,000 (now around £57,500) was awarded for post-traumatic stress disorder. 

[75]      Both parties referred me to the Judicial College Guidelines Part 4.  Having regard to the symptoms suffered by the pursuer after the death, those from which she continues to suffer and the prognosis for her condition, I am of the view that an appropriate classification of the pursuer’s condition, using those guidelines, is in the region of “moderately severe”.  Any award for this pursuer should be at the higher end of that.  After considering all of the information before me I am of the view that a reasonable award under this head would be £35,000.  I allocate half of that sum to the past with interest at 4% from the date of death to the date of decree.

 

Agreed loss of earnings and services

[76]      Parties had agreed sums inclusive of interest to the date of proof, namely, loss of earnings at £60,000 and services at £20,000.

 

Clinical psychology treatment

[77]      A claim was also made for the cost of psychology treatment for the pursuer.  Although not contained in a joint minute I understood that there was no dispute regarding the sum claimed, namely, £6,250.  Accordingly I award that sum under this head.

[78]      I shall put this case out by order to finalise the sums to be awarded once interest has been added.  I shall also hear parties on the issue of expenses which I reserve meantime.