Nervous shock in the digital age

Nervous shock cases have always been hotly disputed in Scots Law. Perhaps the most famous case of all – Donoghue v Stevenson [1932] (the snail in the bottle case) has its genus in a nervous shock case.

The courts have wrestled regularly with how to properly define the class of persons who could claim in a nervous shock case.

Primary and secondary victims

In Alcock v Chief Constable of South Yorkshire Police [1992] (Alcock), which arose out of the Hillsborough disaster, as a control mechanism for limiting the class of individuals who could recover damages, the court divided claimants into two categories:

  1. Primary victims - those directly involved in sufficiently shocking (usually life threatening) situations.
  2. Secondary victims - those not directly threatened, often close family members of those injured or killed.

Understandably, the courts are asked to adjudicate on far more secondary victim claims than primary victims.

The criteria for secondary victims

The legal test as to whether a secondary victim can be awarded damages for psychological harm is ultimately “whether it was foreseeable that the negligence of the defenders in causing physical injury to one party would also cause psychiatric injury to the pursuers in consequence of the accident” (Robertson v Forth Road Bridge Joint Board Rough & Another [1995] (Robertson)).

To succeed in a claim for psychological harm as a secondary victim however, it ultimately has to be shown that on the basis of:

  • The relationship between the primary and secondary victim, which requires to be one involving close ties of love and affection.
  • The proximity of the secondary victim to the primary victim’s accident, which requires to be one sufficiently proximate in both time and space.
  • The manner in which the primary victim’s accident has been communicated to or perceived by the secondary victim, that the pursuer “could not be expected to exhibit the normal fortitude to be expected of others not in such a relationship”, therefore rendering any psychological harm thereto a reasonably foreseeable consequence of the defender’s negligence (Robertson).

While every case requires to be decided on its own merits, there is authority to support the proposition that even where there was proximity in terms of space and time, as well as in the manner in which the primary victim’s injuries were perceived by or communicated to an alleged secondary victim pursing a claim, the relationship of a brother-in-law was considered by the court as too remote for the claim to succeed (Alcock). Furthermore, there is also authority to support the proposition that friends who had spent the greater part of their working lives together, who often walked to and from work together, and who socialised by way of drinking once a week, did not satisfy the requirement of proximity in terms of a close tie of love and affection for the purposes of such a claim (Robertson).

Comment

Alcock remains the law. However, since this judgment was handed down in 1992, we have witnessed an explosion of new social media platforms and new technologies. From smartphones to ‘selfie’ generations, we live in a world saturated in live and unedited imagery. In light of these transformations, we watch in anticipation to see how the courts deal with novel arguments brought by claimant solicitors challenging the relevance of the Alcock criteria.