This case provides an illuminating consideration of the scope of liability in this difficult area of law.
Facts
On 2 November 2006, the claimant’s daughter was one of the four teenage girls in the back of a car being driven by the defendant on the mountain road between Garnlydan and Llangydnidr. The defendant lost control of the car which left the road and crashed. All four girls were killed.
The fathers of the other three girls attended the claimant’s home at around 10pm concerned at their absence. They returned shortly afterwards with word of an accident. The four fathers went to the site of the accident where there was a police cordon about a mile from the scene. It was apparent that there was a serious accident, but no details were given.
Within a short time, all parents of the girls, as well as many other people, were milling around. Although the claimant could not see the accident scene itself, he had a vivid sight of the helicopter hovering over it with its lights beaming down, and of the lights thrown up by the emergency vehicles on the ground. The effect was accentuated by the sounds of the helicopter and of the other vehicles sirens.
The parents were then bluntly informed by a police officer that all four girls were dead. The resultant scene was hellish. The crowd reacted hysterically: there were screams and cries of anguish with the parents staggering around.
The claimant took his wife home before they attended the police station with the other parents. After a suggestion to the contrary it was confirmed that all four girls were dead. The atmosphere was so unbearable that the claimant and his wife returned home. They, with family members of the other dead girls, then attended the hospital mortuary. The claimant’s daughter was not identified by the claimant himself but by the claimant’s wife in a morgue very close by. The claimant’s wife did however relate to him vivid detail of the body’s appearance and smell. This all occurred in a highly-charged atmosphere of extreme and tangible distress, punctuated by wails and cries from other relatives.
Issues
it will be remembered that so called Hillsborough cases set down three requirements for a secondary victim to recover.
• A close tie of love and affection;
• A temporal and physical proximity to the incident; and
• Direct perception of the incident or its immediate aftermath.
To these can be added a fourth, namely that there must be a psychiatric injury arising from the traumatic perception itself, as opposed to grief due to the death.
The Judge identified two issues:
(a) Whether the claimant suffered psychiatric injury by the shock of what he witnessed rather than grief for loss of his daughter; and
(b) Whether his sight, hearing or proximity to the events in the immediate aftermath brought him within the limits of recovery.
Determination
Issue (a) was one of pure fact, heavily dependent upon the medical evidence. The judge preferred the claimant’s psychiatrist’s diagnosis of PTSD over the defendants’ psychiatrists diagnose of deep grief.
Issue (b) was one of mixed fact and law. Its determination entailed a detailed consideration of the authority, beginning with McLoughlin V O’Brien [1983]. In that case the claimant learned at hospital, one to two hours after a road traffic accident, that her youngest daughter had been killed, while simultaneously seeing her husband and other children distraught and badly injured. The House of Lords, allowing her claim, emphasised that it would be impractical and unjust to insist on direct and immediate perception of the actual accident itself, recognising that the ‘accident’ can consist of a serious event.
The next case considered was another Hillsborough case where the brother of a victim identified the body at the morgue eight hours after the disaster, His claim failed on the basis that even if the identification could be described as part of the ‘aftermath’, it was not part of the ‘immediate aftermath’. The House of Lords did, however, emphasise the case specific nature of these issues.
The judge held that liability was established here for the following reasons:
• The extreme nature of the facts four teenage girls having been killed and all their parent together manifesting mutually resounding distress at the scene, at the police station and in the mortuary.
• The scene from the police cordon was exceptionally harrowing and became even worse when word of the girls’ death was bluntly imparted.
• Although the attendance at the mortuary was nine hours later, the claimant’s involvement and trauma had been unrelenting from when he reached the police cordon. The brief infusion of hope when it was suggested the claimant’s daughter might have survived, swiftly discharged, was an aggravating factor. The sequence could not be dissected into different parts.
• The qualitative distinction between direct and reported perception of the body was insufficient to break this sequence.
Judgment was entered for the claimant for damages assessed at £25,000.
Discussion
Secondary victim cases remain difficult and fact sensitive. While this case ultimately turned on its own facts, several important points can be extracted.
Firstly, that these cases turn on their own facts is, in itself, an important principle. Comparisons with other decided cases, while valid, only go so far.
Secondly, as the definition of ‘immediate aftermath’ is significantly more elastic than might have been thought from the earlier cases. This case perhaps represents a slight further extension as the perception of the deceased’s body was purely a second-hand one.
Finally, this judgment explicitly confirms what many would have inferred: the more horrific the facts, the more likely the claim to succeed.
If you have suffered a psychological injury and need further advice please call Richard Meggitt, solicitor on 0114 2678780 or email [email protected]
