Danielle Weddle v Glasgow City Council, Sheriff McGowan, ASPIC, 30 April 2019
- Certain legal limits apply when the courts, throughout the UK, consider civil compensation claims by so-called “primary” and “secondary” victims for psychological or psychiatric injury without physical injury.
- Duty of care is used as the threshold device to give effect to these legal limits.
- Broadly speaking, the threshold for a primary victim is that that person must be “directly involved” in the incident.
- The threshold for a secondary victim who was not “directly involved” is that that person must meet certain additional criteria, such as having witnessed at close hand the death of a close family member.
- Weddle v Glasgow City Council, Sheriff McGowan, ASPIC, 30 April 2019, is a classic example of duty of care being used as a threshold device, in a case based solely on primary victim status, to deny compensation to a person who, though affected by an incident, was not directly involved with it.
- A link to Sheriff McGowan’s judgment is here.
- Ian Leach, Partner and Head of BLM’s Edinburgh Office led the defence of this case, instructing Andrew Smith QC as senior counsel and Greg MacDougall, BLM Partner and Solicitor Advocate, as junior counsel.
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The key facts
- The pursuer first became aware of what later became known as the Glasgow Bin Lorry Tragedy when she heard a loud bang. That was the bin lorry hitting a taxi at around 19mph when those vehicles were around 40m from the pursuer. The pursuer looked up but did not otherwise react.
- The pursuer gave evidence that the bin lorry, and the taxi it hit, seemed to her as if they were coming towards her, out of control, and was relieved that neither hit her. She was, she said, terrified when she saw the vehicles coming towards her.
- The bin lorry and the taxi came to a stop closer to the pursuer but at no stage was either vehicle coming directly towards her. At the time that the vehicles came to a stop, the pursuer was unaware that pedestrians had been struck by the uncontrolled bin lorry.
- The pursuer started to become aware of the tragedy after crossing the road which she was going to cross before the incident happened and walking along a street. She saw a girl on the ground and then realised the girl was dead. She saw another girl on the ground and then realised that she had been horrifically injured.
- It was not disputed that the driver of the bin lorry had been negligent and that the defender was vicariously liable for that negligence. It was not disputed that the pursuer had suffered mental harm, PTSD. The issue for determination of the liability dispute was whether the pursuer was a primary victim.
The Sheriff’s decision on liability
- The Sheriff held that a duty is owed to a primary victim where that person was placed in danger, or reasonably believed themselves to be so. The fear or terror of physical injury to the primary victim is of the essence. Fear or horror in the aftermath, though clearly likely to have an effect on the person, does not count in law in terms of the threshold device for duty of care.
- The Sheriff held that:
- Evaluated objectively, the pursuer was never at risk of sustaining a physical injury. The factors of relevance on that were physical ones including location of the vehicles, speed, distance and direction travelled.
- The bin lorry driver would not have reasonably foreseen that his driving at the relevant time would have given rise to the risk of physical injury to the pursuer having regard to where she was at the material time.
- To be successful the pursuer would have to have had a reasonable belief that she was at risk of sustaining physical injury. In light of the fact that, objectively, the bin lorry (and taxi) were never going to come into contact with her and she was never in danger, any belief that the pursuer had in relation to fear for her safety was not a reasonable one.
- Going further than that, the sheriff did not accept that the pursuer actually had any belief (reasonable or otherwise) of a risk of injury.
- So, the pursuer did not qualify as a primary victim and there was no liability.
The Sheriff’s decision on quantum
- If the Sheriff had found liability then he would have awarded £214,572.40 damages.
What this means for you
- For those who may have to pay for the negligence of others, this is a welcome decision.
- This case underscores the need to consider the legal limits imposed on claims made by primary or secondary victims and, in particular, to consider whether such claims can overcome duty of care being used as a threshold device.