Keoghs Insight

Author

Lauren Flanagan

Secondary victim claims and the assessment of future working life time earnings

Client Alerts01/02/2021

Sarah Jane Young v John Anthony Downey [2020] EWHC 3457 (QB)

The decision of Mr Justice Martin Spencer in December 2020 makes very interesting reading in two respects.

  1. Firstly he reconsidered the often debated ability of secondary victims to recover damages for psychiatric injury and the control mechanisms which exist to limit the scope of claimants with a cause of action.
  2. Secondly he carried out a comprehensive analysis concerning the valuation of future career earnings.

The facts

The claim arose following an IRA bomb attack in Hyde Park on 20 July 1982. The bomb, which was concealed in a car boot, was detonated as members of the Household Cavalry rode past during the changing of the guard. The claimant’s father was one of four soldiers killed by the bomb which injured 31 others.

The defendant, a member of the IRA, was forensically identified by the police as having taken part in the plot.

The claim presented

Following the collapse of criminal proceedings against the defendant in 2014, the claimant brought a civil claim for personal injury arising out of the death of her father and a claim under the Fatal Accidents Act 1976 for loss of dependency upon the part of her mother together with a small claim on the behalf of the Estate of the Deceased under the Law Reform (Miscellaneous Provisions) Act 1934 for the deceased’s pain and suffering in the short period between the detonation of the bomb and his death.

  1. Secondary victim claim issue

The claimant was 4.5 years old when her father was killed and in nursery at the barracks when the bomb exploded. The nursery window looked out over the courtyard of the barracks. Before her father left for ceremonial duties she went to the window of the nursery to wave him off. She heard a huge noise and felt the building shake. She saw soldiers rushing out of the barracks to see what was happening and then saw soldiers return covered with blood and embedded with nails. One man had nails sticking out of his hand. She recalled being frightened and then being taken away from the window and put in a different room. She later told her mother “daddy should be coming now”.

It was claimed that she had suffered severe psychiatric illness following her father’s death in 1982 which had a devastating impact upon her life.

The psychiatric evidence

The claimant relied upon a psychiatrist, Dr Cooling, who stated that the claimant associated what she heard (the bomb exploding) and what she saw immediately afterwards with danger to, or fear for, her father. The expert said she had developed post-traumatic stress disorder as a result of witnessing the circumstances and direct aftermath of the Hyde Park bombing. He diagnosed a recurrent depressive disorder as a result of the shock of the event. He also diagnosed an enduring personality change and a reactive attachment disorder of childhood. He considered that the claimant’s psychiatric disorders would not have manifested themselves but for the bombing.

The Decision

The court rejected this evidence on the basis that the claimant never stated at any point that she associated what she saw and heard with her father or appreciated her father might have been involved which was considered unsurprising for a four year old. The claimant at her young age would not have had the necessary understanding or development of mind to associate what she had witnessed with danger to her father.

The court considered that in order to recover damages it was necessary for a secondary victim to prove that their “shock” was materially connected to an appreciation that the primary victim has been or might have been involved in the accident witnessed, including its aftermath. This is an issue which has not been directly addressed by the courts previously.

At Paragraph 32 Mr Justice Spencer stated: “Thus the identification of the loved one as the primary victim is an important, indeed in my judgment, an essential element. By contrast in the present case there was never, at the relevant time, any recognition by the claimant of her father as the primary victim.”

The claimant’s claim for damages for psychiatric injury was dismissed.

Practice Points

This is a helpful case which sets out the law concisely with respect to secondary victim claims. It makes clear that this area of law is one which is very tightly controlled and it remains incredibly difficult to establish such a claim. If presented with a secondary victim claim which falls outside of the tight control mechanisms as set out by the case law in this area, consideration ought to be given to pressing for early determination of the issue by the court by way of a summary judgment/strike out application.

  1. Projected career earnings

Whilst rejecting the secondary victim claim, the judgment proceeded with the valuation of the dependency claim under the Fatal Accident Act and serves as a very useful aide memoire as to how the courts are likely to approach their role in predicting future “but for” earnings over many years.

The claim here concerned a deceased soldier in the foothills of a military career. The judge was heavily influenced by the evidence of an employment expert who could assess the percentage chance of a given career path both in the army and beyond, based on statistical evidence and informed by the “known knowns” of the deceased at the time of death.

Having mapped out the career paths, with earnings and promotion steps, along with employment benefits, it then fell to an accountant to put a post-tax value on each path. Having done this exercise, along with pension entitlements, a total projection was elicited for each career path ranging from the most conservative (a certainty) to aspirational (a discounted chance).

The judge then discounted each route by the chance that it might have happened had he lived. The discounted totals were then used by the judge to assess financial dependency.

The final part of the jigsaw was an apportionment in the dependency of the child and mother. At this point the judge took a broad brush approach and apportioned this on a 25/75 basis. This appears flawed in our view as it was applied to the totality of the award, rather than the date by when the child dependency would have come to an end. However this calculation is neutral to any compensator as the total payout is unaffected by the split.

Insurers will find this judgment instructive when faced with this type of speculative claim. Judges can and will navigate a statistical route through the options, discounted for the chance that a given outcome would not have happened.

Link to full judgment here.

For more information, please contact Partner, Lauren Flanagan.