I have been covering this a lot with my students of late and, outwith Crime and Criminology, Delict ( Tort) is my passion in Scots law.
For avid fans of my teaching ( there are some avid fans out there…..???) you will recall some of the great, indeed legendary and seminally important Delict cases in Scots Law. Mercifully, our little snail and the ‘no-longer-standing’ café in Paisley will only receive a fleeting mention this morning.
So May Donoghue must look down on us periodically, if you believe in that sort of thing and wince thinking that never in her wildest contemplation could she have imagined that going for a ‘ginger float’ with her pal back in 1928 would have, literally such global consequences. But it did. Good old Lord Atkin and his famous ‘neighbour principle’ may, sorry is, one that has haunted many a law student for close to 100 years but his famous ‘dictum’ established a precedent which has created the modern day concept of ‘duty of care’. Once you then apply the ‘damnum’ principle correctly and fully, liability (generally) is established.
But if Donoghue is the ‘mother of all delict cases’, then there must be others to further and succinctly determine what Donoghue didn’t – the effects of ‘psychological injuries’. I’ve no doubt that Mrs. Donoghue got one hell of a fright when our slimy ( and very dead) little mollusc plopped out that bottle and into her ginger beer and ice cream mix. But was she sufficiently traumatised to give rise to a claim for the ‘psychological’ effect of it? It’s hard to tell as some of the most influential cases on that point were all decided post-Donoghue.
Bourhill v Young 1943 AC 92 is arguably our best starting point and perhaps interestingly, a case that students struggle to analyse. Mr. Young, the defender, died when the motorcycle he was riding negligently collided with a car. The pursuer in this action, Mrs. Bourhill was about to alight from a tram about 50 feet from the accident scene. She heard but did not see the incident. After the deceased’s body had been removed, she ventured to the scene of the crash and saw, amongst other things, much blood. She was at the time 8 months pregnant and, sadly, gave birth to a stillborn child. She raised an action against the estate of the late Mr Young claiming she had suffered ‘nervous shock and stress’ and that this was due to ( and therefore the fault of) Mr Young. In order to succeed, she required to demonstrate the 3 elements of the ‘damnum iniuria datum’ principle. Was their a duty owed to her by the Defender? Her claim fell at the very first hurdle because the court held that he did not. The unfortunate circumstances surrounding the loss of her unborn child could not have been reasonably foreseeable by Mr Young and therefore the first of the element to the ‘damnum principle’ had to fail. Her proximity, or lack of it, was another factor and a crucial determining factor in Alcock v Chief Constable of South Yorkshire Police (1991) UKHL 5 ( the Hillsborough disaster case). Proximity, either geographically, or in terms of affinity to the victims are now the leading two issues for the courts to determine along, of course, with the ‘psychological’ damage sustained. We now know that this is not merely a ‘wee fright’ and ostensibly must amount to a ‘medical condition’. Clearly, it must border on a severe mental condition such as PTSD or a psychiatric condition which is certainly setting the bar high.
In May 2019, a student of Stirling University failed in her bid to be awarded compensation following her witnessing the Glasgow Bin Lorry Crash in December 2014. Interestingly and relevantly given the content above, she failed as the Council ( vicariously liable for the actions of their employee, the driver) could not have ‘reasonably foreseen’ that the lorry driver would have had her in his contemplation at the material time. The driver, if you like, was Mr Young and the student, the Pursuer, Mrs Bourhill.
She was not, therefore, a ‘primary victim’ as she had not considered herself as being at risk on that fateful afternoon.
Once again, cases decided generations ago, but setting ‘judicial precedents’ are still very much being used and applied today.
Aaaahhh, don’t you just love the law.