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Fear and anguish shortly before instantaneous death: Chouza v Martins & Ors [2021] EWHC 1669 (QB) - Paul Erdunast, Temple Garden Chambers

14/07/21. Fear and anguish shortly before instantaneous death is capable of compensation in PSLA damages in a fatal accident case – but where that period of fear and anguish was short, the figure was £500.

Mr Rodriguez, the deceased, was unfortunately killed by an articulated goods vehicle which drove on the wrong side of the road, into the car in which he was a passenger. It was more likely than not, the medical expert concluded, that the death would have been instantaneous. Mr Rodriguez would have experienced pain for no more than milliseconds. It was agreed evidence that the deceased would have only been aware that a severe collision was inevitable for a maximum of five seconds before impact. The Claimant, the wife of the deceased, brought a claim under the Fatal Accidents Act for various damages. Interestingly, this included damages for PSLA.

The question for the High Court was, in circumstances where the death is instantaneous, whether PSLA damages are awardable. The Judicial College Guidelines provide that damages are awardable where there is “immediate unconsciousness, or unconsciousness following very shortly after injury, and death occurring within a week”; and “where the victim is conscious initially but dies from their injuries the same day” (1(D): range of £1,290-£2,620).

The arguments

Defendant

The Defendant argued that where death is instantaneous, the sum total of what was felt was intense fear. However, intense fear alone does not amount to PSLA: consider the case of a pedestrian almost run over.

Claimant

The Claimant argued that the deceased must have had a period of physical suffering given the violence of the collision. Accordingly, the mental anguish that preceded it is capable of compensation. The Claimant asked for £2,500 to cover such intense fear.

Judgment

Martin Spencer J observed that “pain, suffering and loss of amenity” must be taken to include the fear and mental anguish preceding physical injury. He concluded that in this case physical injury was sustained, albeit that death followed shortly after.

However, he decided that £500 would be the appropriate award, noting that £2,500 is much too high for a maximum of five seconds of mental anguish.

Conclusion

The PSLA aspect of this case demonstrates that awards may well be made where the deceased died instantaneously, but would have had a very short amount of time prior to the accident where they suffered intense fear or anguish: but that they will be very low indeed.

Image: cc flickr.com/photos/terinea/536128972

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