Lee Wah v Lok Wai Wa (HCPI 476/2010)

In a wide interpretation of the criteria required for secondary victims (i.e. those not suffering any physical injuries) to bring a claim in negligence, the High Court awards damages for a mother’s psychiatric injury following the death of her son in a road accident, despite not witnessing the incident herself.


The Court’s broad interpretation of the well-established criteria that must be established for those who are not physically injured by the negligent act, and DHCJ Leung’s comments that he would refrain from adopting a too narrow view of the relevant components, could lead to an increase in successful claims from secondary victims. This comes at a time when the Courts in the UK are continuing to apply the criteria strictly. See for example Edward Ronayne v Liverpool Women’s NHS Foundation Trust [2015] EWCA Civ 588.

The Court also confirmed that a discount to reflect contributory negligence on behalf of a primary victim, will not be applied to the secondary victim’s claim.


The 12 year-old Deceased was seriously injured after being knocked down by a vehicle driven by the Defendant and was certified dead after hours of resuscitation at the hospital. The Defendant accepted liability for the claim on behalf of the Deceased’s estate, with a 29% discount for the Deceased’s contributory negligence. 
The Deceased’s mother, the Plaintiff, also claimed damages in her own capacity for the psychiatric injury she suffered, which both parties’ experts agreed was wholly caused by the death of her son, although they disagreed as to whether it was the death per se, or the facts surrounding the incident which caused her psychiatric illness.

The Plaintiff was working at the time of the incident and on arrival home found a note posted to her door informing her that the Deceased had been admitted to hospital. She duly rushed to hospital but was not allowed to see the Deceased as he was in the course of resuscitation and emergency treatment. He was certified dead later that day and only then did the Plaintiff see the Deceased. 


DHCJ Leung, after citing the leading UK authorities concerning claims for secondary victims, concluded that the three elements, which needed to be satisfied before a secondary victim would be entitled to bring a claim for their psychiatric injury, were fulfilled:

  1. The relationship between the Plaintiff and the person to whom the duty of care was owed was sufficiently proximate as to be within the class of persons whose claims should be recognised (i.e. the close ties of love and affection test) - there was no difficulty in finding the Plaintiff satisfied this requirement;
  2. Proximity in time and space to the accident – whilst acknowledging the Plaintiff did not witness the accident, the Plaintiff rushing to the hospital and hours later seeing the Deceased’s body after resuscitation had failed were, in DHCJ Leung’s view, all precipitated by the accident and fell within the time and space of its immediate aftermath;
  3. The psychiatric condition must result from the shock that came through sight or hearing of the events or its immediate aftermath - the circumstances from the Plaintiff seeing the note on the door up until seeing the Deceased’s body all materially contributed to her psychiatric illness.

Accordingly the Plaintiff’s claim for damages in respect of her own psychiatric injury was successful.

DHCJ Leung held that although the Deceased was found to be 29% contributory negligent, the mother’s claim should not be discounted on such grounds.

DHCJ Leung also awarded interest on bereavement damages at the full judgment rate (8%) for the primary victim claim (see our separate case note concerning Bushra Bibi and Nabela Qoser v Method Building & Engineering Works Limited (HCPI 301/2012) for further detail).