Lara Thomas examines the Court of Appeal’s recent confirmation in Young v Downey [2025] EWCA Civ 177 that there is no separate and distinct requirement of appreciation that a loved one was the primary victim. Proximity is provided for in the Alcock test for secondary victims.

Facts

Lance Corporal Jeffrey Young was 19 years old when he was killed in the Hyde Park bombing on 20 July 1982, for which the IRA claimed responsibility. The bomb, concealed in a car boot, was detonated as members of the Household Cavalry rode past. It killed three other soldiers, injured 31 people and destroyed seven horses.

Mr John Downey was found responsible for the unlawful killing of Corporal Young as a joint tortfeasor in Yip J’s judgment on liability in December 2019.

Corporal Young’s daughter was the claimant in this action. She claimed personal injury, aggravated and exemplary damages for her own psychiatric injury, and under the Fatal Accidents Act 1976 for loss of dependency on behalf of Corporal Young’s estate. Mr Downey, the defendant, deliberately declined to participate in proceedings.

On the morning of 20 July 1982, Ms Young, who was 4½ years old at the time, had been in the nursery at the barracks, the windows of which looked out onto the courtyard. Before her father left for ceremonial duties, the claimant waved him off from the window. He looked up at her and smiled.

Shortly after, while the claimant was still in the nursery, the bomb exploded. She heard the explosion and felt the building shake. From the window, she was able to see soldiers returning to the barracks covered with blood and embedded with nails. The claimant recalls feeling frightened and, crucially, remembers telling her mother afterwards that “Daddy should be coming now”, but he never did.

Judgment

The defendant was arrested for the explosion in 2013 and was due to stand trial. However, the indictment was stayed by Sweeney J in 2014 as an abuse of process and the criminal proceedings collapsed.

As a result, the claimant decided to pursue a civil claim. She openly stated that her aim was to achieve vindication for the deadly attack on her father, given that the criminal case against the defendant could not proceed. It was made clear that the claimant regarded the civil proceedings as her only remaining route to seeking justice for the atrocity.

A liability trial took place in 2019, before Yip J, who found in the claimant’s favour.

The decision appealed: quantum trial before Spencer J

As part of her claim, the claimant relied upon the expert evidence of psychiatrist, Dr Nicholas Cooling. Dr Cooling made the following observations:

  • He would have expected a child of 4½ to make an association between what she saw from the nursery, and her father. He referred to the fact that she saw him off in uniform and then, a short time later, saw men wearing the same uniform covered in blood, one of whom had a nail sticking out of his hand;
  • Although she wouldn’t have understood that it was a terrorist act, and did not express concern at the time, the claimant would have appreciated she was seeing something unusual, frightening and challenging;
  • Saying to her mother that “Daddy should be coming now” did not indicate that the claimant had no fear or inkling that her father had been involved in the events earlier in the day. He thought that this was the claimant seeking reassurance about her father, which was not forthcoming.

Despite the supportive expert evidence, Martin Spencer J, who heard the claim at first instance, dismissed the claimant’s case because:

  1. He held that she could not demonstrate an essential ingredient in her claim – that she appreciated that her father had been, or may have been involved in the explosion;
  2. He rejected the written and oral expert evidence of Dr Cooling to the effect that, at 4 years old, Ms Young had feared that her father was involved in the explosion and sought, but did not obtain, reassurance about his return.

Appeal before the Court of Appeal

The claimant made the following submissions on appeal:

  • The judge was wrong in finding that there was a free-standing requirement that the claimant must show she appreciated that her father was involved in the explosion, and even if there were, such evidence had been adduced by the claimant and by Dr Cooling’s two reports;
  • The judge had been wrong to reject the expert evidence of Dr Cooling and instead rely on his own inexpert view that it would not have occurred to the claimant that her father had been injured or killed unless she had seen the trauma to him herself, because a four-year-old’s mind works differently to an adult’s mind.

The claimant’s appeal was allowed, and the following was held:

Free-standing requirement

Sir Geoffrey Vos (Master of the Rolls) held that the proper approach to the identification of persons who are sufficiently proximate to be able to claim as a secondary victim has been established by a series of cases which were recently summarised in Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1. The five common features of all the reported cases in which such claims had previously succeeded were set out in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310. These remain the touchstone:

  • In each case there was a marital or parental relationship between the claimant and the primary victim;
  • The injury for which damages were claimed arose from the sudden and unexpected shock to the claimant’s nervous system;
  • The claimant was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards;
  • The injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim;
  • An element of physical proximity to the event as well as a close temporal connection between the event and the claimant’s perception of it, combined with a close relationship of love and affection between the claimant and primary victim.

The Court of Appeal held that Martin Spencer J wrongly attempted to introduce a new requirement as to proximity beyond what had already been explained in the Alcock line of authority.

The Master of the Rolls made it plain that i) the secondary victim must have witnessed the harm or danger to the primary victim and thus have an understanding of what was going on, and ii) must have a close tie of love and affection with the victim, bringing with it some degree of sentience. Without this, the secondary victim would be in no different position to an ordinary bystander, and therefore not owed a duty by the defendant. 

These two factors, by definition, include an element of appreciation, such that the creation of a separate and distinct requirement of appreciation is unnecessary and incorrect.

Rejecting expert evidence

The Court of Appeal rejected the claimant’s suggestion that Lord Hodge’s judgment in Griffiths v Tui (UK) Ltd [2023] UKSC 48, [2023] WLR 1204, meant the judge should not have sought to challenge the claimant’s evidence in Mr Downey’s absence. As emphasised in Tui, the objective of any trial is to achieve fairness and justice. Should the judge have doubts about his understanding of the written evidence, or any other material matter arising from it, he is entitled to ask for the witness to be called.

However, the Court was clear that the judge should not have allowed his own opinions, which contradicted the expert evidence without any proper foundation for doing so, to override Dr Cooling’s clearly reasoned conclusions. 

For the above reasons, the appeal was allowed, and the claimant was awarded damages in respect her psychiatric injuries.

Comment

The following points can be taken from this judgment:

  • It reaffirms the core principles needed to establish proximity, as set out above. The need to show an appreciation that a loved one had been involved in a traumatic event is not a distinct and separate requirement. Although fact specific, it would seem that appreciation can be inferred from two of the pre-existing requirements: demonstrating that the secondary victim witnessed the harm or danger to the primary victim; and has a close tie of love and affection with that victim;
  • The judgment offers a helpful reminder that the overarching principle in Tui is to achieve fairness and justice. Even with uncontroverted expert evidence, if the judge harbours doubts over the same, it is still open for the judge to call the witness to give oral evidence.  Those practising in this area should take note that uncontroverted evidence, even in a dispute where the other side is not engaging in proceedings, does not mean that the evidence will be accepted without judicial scrutiny;
  • What is clear is that it should be rare that a well-reasoned expert opinion be rejected in favour of the judge’s own non-expert views, regardless of whether these are based on the judge’s own personal experience.

Bringing a claim against a defendant who does not participate

  • The initial impetus for Spencer J challenging the expert evidence is that the defendant did not participate in the proceedings and so did not challenge that evidence himself. It is therefore worth commenting on Yip J’s comments regarding the wider issue of civil proceedings being brought for vindicatory processes.  She echoed the sentiment of Lord Bingham in the case of Ashley v Chief Constable of Sussex Police [2008] UKHL 25, that there is no bar in this jurisdiction that would prevent an action being pursued for vindicatory damages. The motivation for a valid claim for damages is of no concern to the court;
  • We can compare this stance to cases which are struck out as an abuse of process pursuant to Rule 3.4(2)(b) on the grounds that they are “not worth the candle” (Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75 [2005] QB 946). The following cases are of interest as they appear to run contrary to the approach suggested in Young’s 2019 judgment and Ashley.  An overview of this line of case law was undertaken in the recent case of Meagher v The Chancellor, Masters and Scholars of the University of Cambridge & Ors [2025] EWHC 30 KB:
  • In Jameel, a libel case, the Court of Appeal considered that if the claimant succeeded in his action, the vindication and damages gained would be small. This minor benefit to the claimant would have required a level of judicial and court resources that were not appropriate or proportionate;
  • In the Duchess of Sussex v Associated Newspapers [2020] EWHC 1058 (Ch), the Court struck out various allegations that did not go to the ‘heart’ of the case, thus confining the issues to what was reasonably necessary and proportionate for the purpose of doing justice between the parties;
  • It was considered by the Court in the defamation action of Schellenberg v BBC [2002] EMLR 296 that it must have regard to the possible benefits that might accrue to the claimant in order to render a significant expenditure potentially worthwhile;
  • After considering Jameel, the Court in Sullivan (AKA Soloman) v Bristol Film Studios Ltd [2012] EWCA Civ 570 (a copyright claim) struck out the claim on the basis that the costs of fighting it were out of all proportion with the amount the claimant would likely recover in damages – assessed by the judge to be £50.
  • What is clear from the case law is that proportionality is key – both when considering the amount of damages the claimant would recover against the costs of litigation, and the extent to which judicial and court resources would be taken up by the process;
  • Libel and defamation actions often involve complex issues and are subject to special procedure under the CPR. It can also be said that in such cases, damages are often not the primary remedy sought by claimants. However, Ms Young’s personal injury claim, with damages being awarded in the sum of £121,500 can be distinguished from such cases. Ms Young had suffered not only from the loss of her father at such a young age, but also from a significant psychiatric injury including a diagnosis of PTSD, as a result of witnessing the aftermath of the event which caused his death. Although it would have been open to the court to strike out her claim on its own accord and without the defendant’s engagement in proceedings, it can easily be said here that Ms Young’s claim was “worth the candle”; 
  • It is also worth noting, in this context, Senior Master Cook’s recent refusal to make a Group Litigation Order (‘GLO’) in the case of Webster and others v Treloars Trust [2025] EWHC 516 (KB). The refusal was made on the grounds that the approval of such an order would be a disproportionate use of the court’s resources when there was already a compensation scheme in place. This is a reminder that even cases concerning bereaved relatives, which carry symbolic meaning rather than being pursued predominantly to satisfy a damages claim, will be considered carefully by the courts – at least at a procedural stage.

Lara Thomas, Pupil Barrister, 12KBW

Readers may also be interested to read our blog on the claim against Gerry Adams, which can be found here: https://pilawblog.com/2024/04/23/clark-v-adams-personal-injury-claim-against-gerry-adams-to-proceed-to-trial/.