Vernon v Bosley (No 1)

A secondary victim who proves a recognised psychiatric illness caused or materially contributed to by witnessing a horrifying event may recover damages. Recovery is not confined to post-traumatic stress disorder or the DSM-III-R criteria. Psychiatric illness may coexist with pathological grief, and damages need not be artificially divided where the defendant’s negligence materially contributed to the illness. Normal grief alone remains uncompensated. The claimant bears the burden of proving causation, and speculation is insufficient. Expert evidence must be independent, objective and confined to the expert’s field. The appeal was allowed in part because the liability finding was upheld by a majority, but damages, interest and costs were reduced.

The defendant negligently drove a car into a river, drowning the plaintiff’s two daughters and another child. The plaintiff witnessed the rescue attempts and claimed psychiatric injury, loss of earnings and care costs. Liability for the accident and the necessary relationship and proximity for a secondary-victim claim were admitted, but causation, the nature of the psychiatric illness and the quantum of loss were disputed.

After a lengthy trial, Sedley J awarded substantial damages. He held that the plaintiff’s mental deterioration was initiated by witnessing the accident, although the collapse of his business and later events aggravated it. The defendant appealed, contending that the illness was grief or pathological grief rather than PTSD, and challenged several heads of damage, interest and costs. The central questions were whether the plaintiff had proved actionable psychiatric injury caused by the accident and, if so, what damages and procedural consequences followed.

1. Liability. By a majority, Evans LJ and Thorpe LJ upheld the finding that the plaintiff suffered actionable psychiatric injury. A secondary victim need not prove PTSD as defined in DSM-III-R, or any other particular diagnostic label. The relevant question is whether the plaintiff suffered a recognised psychiatric illness caused or materially contributed to by the traumatic experience, within the policy limits identified in Alcock v Chief Constable of South Yorkshire Police [1992] AC 310.
2. Grief and causation. Normal grief and bereavement are not compensable. However, where witnessing the accident materially contributes to psychiatric illness, the illness remains recoverable even if pathological grief also contributes. It is unnecessary to undertake an artificial apportionment between illness caused by the traumatic experience and illness associated with bereavement. The claimant must still prove the causal connection; guesswork is insufficient. The majority considered that the trial judge was entitled to rely on the lay evidence, the medical evidence and the plaintiff’s post-accident deterioration.
3. Expert evidence. Psychiatric experts inform the court but do not determine the legal issue. Their evidence must be independent, objective, properly reasoned and confined to matters within their expertise. The court should define the issues and prevent expert evidence from becoming partisan or disproportionate.
4. Quantum and ancillary matters. Applying the approach in Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602, the court reduced the loss-of-earnings figures and increased the discount for unstable employment prospects. It reduced future domestic-care damages, disallowed the occupational-therapy award and deducted one year’s interest for inordinate delay. The failed Paraero issue had substantially increased the costs, so the costs order was varied.
5. Disposition. Stuart-Smith LJ dissented on liability, but agreed with the majority on quantum, interest and costs. The appeal was allowed in part. Judgment was varied to £643,425.56, together with interest and costs as specified in the judgment.

• Court of Appeal (Civil Division) allowed the appeal in part. Evans LJ and Thorpe LJ upheld liability; Stuart-Smith LJ dissented on liability. The court reduced damages, interest and costs.
• High Court Sedley J awarded the plaintiff damages after a lengthy trial and later determined interest and costs. The judgment under appeal was delivered on 30 January 1995, with further judgment on reserved matters on 10 May 1995.