The significance of the delictual relationship between the primary victim and the defender in claims involving "nervous shock": Law legal skills Assignment, Sri Lanka

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The significance of the delictual relationship between the primary victim and the defender in claims involving "nervous shock" suffered by a secondary victim has never been fully considered. (Nervous shock is the widely accepted generic term covering a variety of forms of "provable psychiatric illness" for which damages may be recoverable: see Stair Memorial Encyclopaedia, Vol 15, paras 284-295; cf cases involving primary victims in which the pursuer alleges being physically threatened by the defender's conduct, e.g.

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Bourhill v Young, 1942 SC (HL) 78; 1943 SLT 105, and Page v Smith [1996] 1 AC 155.) Analysis of this issue by the House of Lords has tended to consider only the establishment of the duty of care to the secondary victim, appearing to amalgamate the duty of care and breach stages of analysis at the expense of the latter. However, it is submitted that a more accurate legal analysis would concentrate on whether there has been a breach of a duty of care, i whether the defender's conduct is negligent vis-à-vis the secondary victim. (See further infra and also the discussion by Thomson in "Page v Smith-- A Scottish Footnote" (1996) 112 LQR 387.)

It is submitted that in secondary victim cases covered by McLoughlin v O'Brian [1982] 2 All ER 298 and Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907, the success of any secondary victim's claim for breach of a duty of care is dependent upon the prior legal relationship between the primary victim and defender. This may have important implications in cases in which there may be a possible defense of volenti nonfit injuria or contributory negligence against the primary victim. What effect would such a defense have on the success of the secondary victim's claim? 

This brief article will not deal explicitly with the various requirements for the existence of a duty of care in a claim for nervous shock based on McLoughlin and Alcock, *S.L.T. 23 but will assess the court's treatment of secondary victim claims to discern any connection with the delictual relationship between the defender and the primary victim. Although recent Scottish judgments in Robertson v Forth Road Bridge Joint Board, 1996 SLT 263; 1995 SCLR 466 (First Division); see also (No 1) 1994 SLT 566, have dealt with the recovery of damages for nervous shock, this issue has not been explicitly considered.

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