Sarah Jane Young v John Antony Downey [2025] EWCA Civ 177: Sir Geoffrey Vos (Master of the Rolls), Lord Justice Underhill and Lady Justice Nicola Davies

In this case the Court of Appeal confirmed the legal principles that should be applied to claims for psychiatric injury made by secondary victims after witnessing an incident involving a loved one. The court also examined the appropriateness of a judge relying upon his own opinions to reject medical evidence relied upon by the Claimant.

On 20 July 1982 a bomb exploded in Hyde Park as members of the Household Cavalry rode past. Four soldiers were killed. Thirty-one people were injured, and seven horses were destroyed. The IRA claimed responsibility for the bomb.

The Defendant was arrested in connection with the explosion in May 2013. In 2014, the indictment against him was stayed as an abuse of process because he had been provided with an assurance that he was not under investigation.

Ms Young was 4½ years old at the time of her bombing. Her father, Lance Corporal Jeffrey Young, was one of the soldiers who was killed in the explosion. On the day of the bombing Ms Young was in the nursery at the Household Cavalry barracks. She went to the windows of the nursery to wave her dad off. As soldiers went past, her dad turned to look at her and smiled before he left. When the bomb exploded, she was still in the nursery. There was a huge noise. She heard the explosion and felt the building shake. She saw soldiers rushing out of the barracks to see what had happened. She knew that her dad had left on horseback. She then saw soldiers returning to the barracks covered in blood and embedded with nails. One man had nails sticking out of his hand. She felt frightened. Her nursery teacher then took her away from the window and put her in another room. She remembered telling her mum afterwards that “Daddy should be coming now”, but he never did. She said that she remembered that day as clearly as if it were today. The memories of it hit her at unexpected moments and especially when she heard fireworks or loud bangs.

Ms Young said that she had suffered severe psychiatric illness since her father’s death which had continued into her adult life. It had had a devastating effect on all aspects of her life.

Ms Young brought a claim against the Defendant for personal injury, for aggravated and exemplary damages for her own psychiatric injury and the Fatal Accidents Act 1976 for loss of dependency and on behalf of her father’s estate.

A judge had found that it was reasonable to infer that the Defendant was knowingly involved in the plan to detonate the bomb. The Defendant was accordingly responsible for the unlawful killing of Lance Corporal Young as a joint tortfeasor.

A second hearing took place before a different judge to consider the question of damages. The written evidence before that judge comprised two witness statements from Ms Young and reports from experts including a psychiatrist. The Defendant had declined to take part in the proceedings.

The judge rejected Ms Young’s claim for two reasons:

1. He found that Ms Young could not demonstrate an essential ingredient in her claim, namely that she appreciated that her father had been or might have been involved in the explosion.
2. He rejected the written and oral evidence of the psychiatrist to the effect that Ms Young had feared at the time that her father (who was her primary carer) was involved in the explosion and sought, but did not obtain, reassurance about his return.

Was the judge right to hold that Ms Young needed to show that she appreciated that her father was involved in the explosion?

The Court of Appeal said that a series of cases had established the proper approach to identifying people who were sufficiently proximate to recover damages for psychiatric injury resulting from witnessing traumatic incidents or their aftermath. Those cases (McLoughlin, Alcock and Frost) had been summarised last year by the Supreme Court in Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1, [2024] 2 WLR 417. In Paul the Supreme Court had explained that Lord Oliver in Alcock had identified the five common features of all reported cases in which such claims had previously succeeded. Those five factors or “control mechanisms” remained the touchstone:

1. In each case there was a marital or parental relationship between the claimant and the primary victim.
2. The injury for which damages were claimed arose from the sudden and unexpected shock to the claimant’s nervous system.
3. The claimant in each case 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.
4. The injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim.
5. In each case there was not only an element of physical proximity to the event but a close temporal connection between the event and the claimant’s perception of it combined with a close relationship of affection between the claimant and the primary victim.

The Court of Appeal found that the judge was wrong to introduce a new and separate requirement that Ms Young had to appreciate that her father had been involved in the bombing. There was no need to introduce a new requirement as to proximity beyond what had been explained at length in McLoughlin, Alcock, Frost and Paul. Two matters were important to recall. First, Lord Oliver in Alcock was actually only identifying the common features of previous cases in which liability had been held to arise. Secondly, the proximity that was required to be established was between the defendant and the secondary victim. It followed that what was important was whatever made it just that, exceptionally, the defendant should owe a duty to the secondary victim. The injury to the secondary victim had to arise from witnessing the harm or danger to the primary victim, so if the secondary victim did not witness that harm or danger, in the sense that they had no understanding of what was going on, the duty could not arise. 

The Court of Appeal said that the second critical feature of the proximity of a defendant to a secondary victim was the close tie of love and affection that they had to the primary victim. That was what allowed the relative to recover when other bystanders could not. That relationship must bring with it some sentience, in the sense that someone without an understanding of their relationship with a loved one was in no different position to an ordinary bystander.

The Court of Appeal had heard oral argument about the stage at which a child might acquire sufficient appreciation or understanding of the situation to be adequately proximate. On reflection, the Master of the Rolls thought that these arguments missed the point. The question of proximity would all depend on the circumstances. He said that he would not want to define the circumstances in which liability might arise in the future. If, however, the judge were right as to the facts he found, then he said that he would completely agree that no sufficient proximity would be established. The judge found, in effect, that: (i) Ms Young did not appreciate that her father was in danger, (ii) Ms Young had not made the association between the noise of the bomb and the wounded returning soldiers, on the one hand, and fear for her father, on the other hand, and (iii) Ms Young was in no different position to any other child in the nursery that day who heard the explosion and saw the aftermath. If those facts were correctly found, Ms Young’s injury would not have arisen from witnessing the harm or danger to her father. It might have arisen from something that occurred later, but that would not be a sufficient part of the immediate aftermath. The Alcock factors might well lead to a non-sentient child being unable to recover where a sentient child would recover, but that is because the non-sentient child would not have suffered injury as a result of witnessing the incident causing harm or danger to their loved one. If Ms Young had had no appreciation when she heard the explosion and saw the wounded soldiers returning that her father might be involved then the judge would have been right to hold that proximity between Ms Young and the Defendant had not been established.

Was the judge right to reject the psychiatrist’s evidence?

The judge had suggested that the psychiatrist should be called to see if he could elucidate on what might have been in the mind of a four-year-old. The psychiatrist had said that Ms Young would have appreciated that she was seeing something unusual, frightening and challenging. As for Ms Young saying that “Daddy should be coming now”, the psychiatrist interpreted this as a child seeking reassurance about her father which was not forthcoming. The psychiatrist did not interpret this comment by Ms Young as showing that she had no fear or inkling that her father had been involved in the events that she had experienced earlier that day. It was the psychiatrist’s opinion that Ms Young’s post-traumatic stress disorder had been caused by witnessing the circumstances and direct aftermath of the bombing. Having heard the evidence the judge found that Ms Young had not connected the events she witnessed with her father being involved. His logic seems to have been as follows:

1. Ms Young had not actually said that she remembered associating what she had witnessed with her father’s involvement.
2. He did not find that surprising in a four-year-old, who would not necessarily have had the mental understanding to make that association.
3. He thought that, as far as Ms Young was concerned: “she had waved him off, he had smiled at her and he would be coming home later”.
4. The psychiatrist had misinterpreted the words “Daddy should be coming now”. The words: “Daddy is coming soon now, isn’t he?” would have betrayed anxiety.
5. The psychiatrist had been wrong to opine that Ms Young had associated the noise of the explosion and the sight of soldiers wearing the same uniform as her father covered in blood with danger to, or fear for, her father.
6. Since a four-year-old mind works very differently to an adult mind, the judge’s opinion was that a four-year-old would not have appreciated that her father was in danger without witnessing the trauma herself.
7. The judge’s own interpretation of the words that Ms Young used were that she had not made the association.

The Court of Appeal did not think that it was wrong of the judge to have asked for the psychiatrist to give oral evidence when the Defendant did not appear to challenge that evidence. As the case of Tui had emphasised the objective of any trial is to achieve fairness and justice. If a judge harboured doubts about his understanding of written evidence or any other material matter arising from it then he was entitled to ask for the witness to be called. The judge had obviously not decided anything before he asked for the witness to attend.

However, the Court of Appeal found that the judge had impermissibly allowed his own inexpert opinions about the mental capabilities of a 4½ year old child to influence his evaluation of the psychiatrist’s evidence. It was not even clear that he had put those opinions to the psychiatrist to elicit his comments. The judge’s crucial opinions revealed by the judgment were that: (a) a four-year-old would not necessarily have had the mental understanding to make the association between the events she witnessed and her father, and (b) a four-year-old mind works very differently to an adult mind. These opinions were of an expert nature and contradicted the expert evidence without any proper foundation to do so. 

The Court of Appeal said that the judge should not have allowed his own opinions, perhaps born of his personal experiences, to override the psychiatrist’s clearly reasoned expert evidence. The judge ought to have accepted his evidence and held that Ms Young had associated what she witnessed with danger to her father, and that her psychiatric injuries were caused by the events that she had witnessed. Consequently, the judge’s decision on the facts was clearly wrong and should be reversed. Had the judge accepted the psychiatric evidence, he would have concluded that Ms Young (i) had made an association between what she had seen and her father, (ii) would have appreciated that she was seeing something unusual, frightening and challenging, and (iii) had some fear that her father had been involved in the events which she had experienced. Accordingly, the judge ought to have held that Ms Young had established a relationship of proximity with the Defendant because her psychiatric injury arose from witnessing events which she feared might have put her father in danger.

Ms Young’s appeal was therefore allowed, and she was awarded damages of £121,500, including aggravated damages, as assessed by the judge.

19th Mar 2025

Adrian Higgins

Call 1990