Martha Young v. Arthur MacVean [2015] GSIH70

The Scottish Appeal Court has issued its decision in the case of Young v MacVean, and refused the defender's appeal to interfere with the award of £80,000 made to the mother of a "model" son who died in a horrific crash.   The decision would appear to re-affirm the recent decision of Claire Anderson & Ors v Brig Brae Garage Limited which saw a Jury award £80,000 to the father of a deceased, thus arguably setting the bar for awards to parents for loss of society.

In refusing the Appeal, the Judges found that damages were primarily a matter for the Judge at first instance and that this function was "discretionary".   They focused upon the fact that the death had been particularly tragic for the pursuer given that she had lost both her husband and father in unexpected circumstances and also that her relationship with her son was exceptionally close.

Significantly, the Judges also determined that they must, in considering the award, have regard to the "upward pull of Jury awards" suggesting that Judicial awards must align with the generally higher and generous awards given by Juries.   Insurers must take this into account when determining reserves and considering what may be a suitable award for loss of society – the bar has been raised once more but this area of law is far from settled.

Unsurprisingly, the Judges did allow the Appeal insofar as it related to the pursuer being considered a secondary victim of the accident, thus reaffirming the position on secondary victims as per the decision of the House of Lords in the various Hillsborough cases. The pursuer had not actually witnessed the crash in which a vehicle had mounted the kerb and killed her son who was walking to the gym, but she had passed by the wreckage. The critical point, however, was when she had come upon the accident, she had not known that her son had been involved and indeed had expressed relief about him being unable to drive.

The Court took the view that injury to a secondary victim must be caused by the shock of witnessing the accident with one's "own senses" which Mrs. Young had not.   In finding that the Lord Ordinary had erred in her decision in concluding that the pursuer was a secondary victim, Lord Brodie explained that:

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

Clearly policy issues were at the forefront of this decision, which confirms the well-established principals in relation to this area of law.   In the age of the internet and 24 hour news coverage, where events are filmed and communicated world - wide as they unfold, this decision can only be seen to have prevented floodgates from being opened to manifold claims of a similar nature.