Young v Downey

A secondary victim must satisfy the established control mechanisms for psychiatric injury. A close tie of love and affection requires appreciation that the loved person was, or might have been, the person killed, injured or imperilled. Direct perception of a shocking aftermath is insufficient without that essential connection.

The categories of exemplary damages cannot be extended by a first-instance court to compensate for a failure of the criminal justice system. Any such extension is for Parliament or a higher court.

The claim arose from the Hyde Park bombing of 20 July 1982, in which the claimant’s father was killed. Liability had been determined in the claimant’s favour by Mrs Justice Yip on 18 December 2019. This judgment concerned quantification of damages.

The claimant sought damages for psychiatric injury as a secondary victim, aggravated and exemplary damages, the deceased’s pain and suffering before death, and loss of dependency under the Fatal Accidents Act 1976. The principal issues were whether the claimant satisfied the secondary-victim control mechanisms despite being aged four at the time, whether exemplary damages were available, and how the dependency claim should be assessed.

1. Secondary-victim claim. The claim for psychiatric injury was dismissed. The principles in McLoughlin v O’Brian [1983] 1 AC 410 and Alcock v Chief Constable [1992] AC 310 require, among other matters, a close tie of love and affection, proximity in time and space, direct perception, and injury caused by a sudden shocking event.
2. The close-tie requirement includes appreciation that the loved person was, or might have been, the person killed, injured or imperilled. The claimant heard the explosion and saw injured soldiers, but the evidence did not establish that she appreciated at the time that her father was involved. Her age did not remove that requirement. The approach was supported by Taylor v A Novo (UK) Ltd [2014] QB 150.
3. Exemplary damages. The claim was refused. Under Rookes v Barnard [1964] AC 1129, the recognised categories did not extend to oppressive conduct by private individuals in circumstances where criminal proceedings had failed. The reasoning in Breslin v McKenna [2011] NICA 33 was accepted: extending exemplary damages to terrorist atrocities would be a radical development for Parliament or a higher court.
4. Other damages. The court awarded £1,750 for the deceased’s pain and suffering under the Law Reform (Miscellaneous Provisions) Act 1934. The dependency claim was assessed on a loss-of-a-chance basis using the additional-claim method in Langford v Hebran [2001] PIQR Q13, producing £713,457. The total award was £715,207, apportioned 25 per cent to the claimant and 75 per cent to her mother.

Liability had previously been determined for the claimant by Mrs Justice Yip on 18 December 2019. This judgment quantified damages.