The Sheriff Appeal Court examines and restates the law on primary victims
Danielle Weddle v Glasgow City Council [07.06.21]
Last week, the Scottish Sheriff Appeal Court issued its opinion in the case of Danielle Weddle v Glasgow City Council, a case arising from the tragic Glasgow bin lorry accident in December 2014. The court restated that in a case of pure psychological injury, a primary victim must have a reasonable belief that they were in danger of physical harm. Harrowing though the incident was, unfortunately for this pursuer the evidence did not stack up – the court agreed with the first instance decision, and the appeal was refused.
On 22 December 2014, a bin lorry collided with a taxi in Glasgow City Centre, which was busy with Christmas shoppers. The driver had suffered a medical emergency, and the collision caused the vehicle to mount the pavement, claiming the lives of six pedestrians.
The pursuer was a witness to the collision and was subsequently diagnosed with post-traumatic stress disorder (PTSD). She was alone at a set of traffic lights near to the collision, waiting to cross when the accident occurred. She did not know anyone involved in the accident and as such, did not meet the relevant criteria to be a secondary victim - witnessing injury or the immediate aftermath of injury to someone with whom one has a close tie of love and affection.
In order to recover damages, therefore, the pursuer needed to persuade the court that she was a primary victim. Following the English Court of Appeal decision of McFarlane v EE Caledonia Ltd , the court held that in order to recover, the pursuer (or claimant) needed to have either been in immediate danger of physical injury, or reasonably believed that she was. Emphasis was placed on the following summary from McFarlane:
It is not only those who may be able to fling themselves out of its path and so escape physical injury… but those in the agony of the moment who reasonably believe they are in danger.
The pursuer was a minimum of 12 metres away from the vehicles at all times, and so was never in danger of physical harm. The presence of CCTV footage as well as her subsequent behaviour led that court to agree with the sheriff at first instance and conclude that she did not fulfil the McFarlane test.
The footage showed the pursuer looking at her phone when she heard the noise of the collision, looking up when the vehicles were around 40 metres away. She briefly looked back at her phone before returning her attention to the accident. The vehicles were to her left and were not travelling towards her at any point. From the lorry’s GPS, it was determined that after the initial collision the vehicles were travelling at just five miles per hour.
Crucially, the pursuer also sought medical attention later that day but made no reference to being in fear for her own safety at any point. In a subsequent assessment, she did claim to have been afraid for her safety, the discrepancy suggested by the doctor to have been “survivor’s guilt”. Combining her initial report with the CCTV footage, however, was sufficient for the court to interfere with the sheriff’s finding that she did not reasonably believe herself to have been in danger.
The case is binding on all sheriffs and, while it may be subject to further appeal to the Inner House of the Court of Session, that is by permission only and we would suggest is quite unlikely to be granted. As an interesting aside, the court also warned against the dangers of combing a first instance decision for every missing nuance when considering an appeal. Just because a witness’ evidence is not narrated in full does not mean that it was not considered and taken into account.
While this case does not change the law on primary victims in any way, it is both a useful reminder of what that law is, and an illustration of how a strict interpretation will be applied even in the most harrowing circumstances. It also highlights the importance of examining as much evidence as possible from the time before and after the accident itself. Perhaps without the CCTV footage, the result may have been different.
Related item: Secondary victim claims: proximity between the alleged negligence and relevant event