Introduction
Has it ever crossed your mind that the boundaries of trauma will one day no longer be confined to physical spaces but instead be amplified by the relentless reach of technology? Secondary victim claims, a concept that courts around the world continue to wrestle with, now face new challenges in an age where the boundaries of what constitutes an event are blurred by the digital realm.
This paper delves into the intersection of law, emotion, and technology, exploring the complexities of secondary victim claims in Kenya. It examines how the legal system grapples with the challenges posed by digital exposure, the evolving definitions of proximity and foreseeability, and the hurdles claimants face in a world where trauma is no longer confined to physical spaces.
Tech-driven Trauma
In today’s hyper-connected world, disturbing content, live-streamed accidents, graphic images, and real-time crises, are no longer far-off abstractions, but a daily click away. The psychological fallout is undeniable, yet how do courts quantify the damage caused by something as intangible as a viral video or a distressing notification? How do we seek justice for emotional devastation when the trauma is mediated through screens?
You should remember that secondary victim claims are not parasitic on primary victims; in fact, there may be no primary victim at all.[i] The mere witnessing of a loved one’s imperilment, whether in person or through the lens of technology, can trigger profound psychiatric injury. This issue cuts to the core of tort law, forcing us to redefine responsibility, victimhood, and the invisible wounds inflicted by trauma.
Historical Context: From Common Law to the Digital Age
The foundation of secondary victim claims in Kenya (though very rare) is rooted in English common law, but the rise of technology has added layers of complexity. The landmark case of Dulieu v White & Son[ii] established that a claimant could recover damages for nervous shock caused by fear for their own safety. Fast forward to the 21st century, does this principle extend to those who suffer psychiatric injury from witnessing traumatic events through technology?
Similarly, in the case of Hambrook v Stokes Bros,[iii] where the court recognized that a mother could claim damages for nervous shock caused by fearing for her children’s safety. Today, this scenario might play out differently: What if the mother had seen a live video of her child in danger? Would the court recognize her claim, or would the digital medium complicate the legal analysis?
However, the 1992 House of Lords case Alcock v Chief Constable of South Yorkshire serves as a crucial turning point, particularly for its emphasis on strict requirements for secondary victim claims. In Alcock, the House of Lords delineated specific criteria that must be met for secondary victims to succeed in negligence claims for psychiatric harm. These included establishing a "close tie of love and affection" with the primary victim, direct or near-immediate proximity to the event, and the requirement to have witnessed the traumatic event with unaided senses. This case set a precedent, restricting the scope of secondary victim claims, especially for those who experienced trauma through mediated means like television broadcasts or third-party communications.
In Alcock, the claimants, family members and loved ones of victims of the Hillsborough disaster, were denied compensation because they had either witnessed the events from a distance or were informed of them through others, thereby not meeting the criteria of "direct" witnessing. Lord Keith and Lord Ackner made it clear that the sudden shock and direct witnessing of a traumatic event were vital to establish a valid claim for psychiatric harm.
However, the evolution of trauma through technological means challenges these traditional boundaries. The rise of social media, live-streamed events, and viral videos brings the question of whether these mediated forms of witnessing traumatic events, similar to those in Alcock, should continue to fall outside the scope of secondary victim claims. If the law strictly follows Alcock, a claimant who witnesses a loved one in distress through a live-stream, or who sees a graphic video, may not qualify as a secondary victim because the event was not "witnessed with unaided senses." The digital transmission of trauma challenges the relevance of proximity, both geographical and temporal, which Alcock placed at the heart of secondary victim claims.
Kenya’s legal framework, heavily influenced by English common law, recognizes secondary victim claims under the Law of Torts. However, the courts have also imposed strict limitations as in the Alcock case to prevent a floodgate of claims. In the age of technology, these limitations are being tested like never before.
The Impact of Technology on Trauma and Legal Jurisprudence
Technology has transformed how we experience and process trauma. Social media platforms, live-streaming, and instant communication mean that individuals are often exposed to distressing events in real-time, even if they are miles away. For example: a parent watching a live-streamed school shooting; a sibling receiving a graphic video of a car accident involving a loved one; a friend witnessing a violent assault through a viral post etc.
In light of Alcock, however, we must ask: does the traditional requirement of "witnessing with unaided senses" still apply when the trauma is digitally mediated? In Kenya, this question is especially pertinent, as the constant digital presence of traumatic events raises concerns about the rigidness of traditional legal frameworks. If the trauma is equally or more impactful than witnessing the event in person, should the legal system continue to uphold the strict criteria laid out in Alcock?
In a landmark case, Paul v Royal Wolverhampton NHS Trust (2024), the UK Supreme Court faced similar questions regarding whether secondary victims who did not directly witness a traumatic event could claim psychiatric harm. The Court emphasized the importance of witnessing an “accident” or its “immediate aftermath” which ought to be uninterrupted sequence of events.
The evolving digital landscape thus prompts the need for a reassessment of what constitutes "proximity" and "immediacy" in secondary victim claims. As demonstrated in Alcock, the Court distinguished those who were physically present from those who experienced trauma indirectly. However, with digital trauma often unfolding in real time, the lines between "immediate aftermath" and prolonged exposure blur, suggesting that a broader interpretation of "proximity" might be needed for cases involving technology-mediated trauma.
Rethinking the Role of Technology in Secondary Victim Claims
In Paul v Royal Wolverhampton NHS Trust, the UK Supreme Court confronted the challenge of determining whether secondary victims who do not witness a traumatic event firsthand but suffer psychological injury as a result of being exposed to the aftermath can seek damages. This case thus brings in the need for courts to consider new realities brought about by technological advances, where trauma is transmitted digitally and can affect a broader range of individuals.
The Court focused on several critical elements in establishing what constitutes an "accident". The Court held: “An accident is, by definition, a discrete event in the ordinary sense of that word, meaning something which happens at a particular time, at a particular place, in a particular way. Whether someone was present at the scene and whether they directly perceived an accident are in most cases questions which admit of a clear and straightforward answer.”
Traditionally, an "accident" had been viewed as an event that occurs in a specific place at a specific time, witnessed by the claimant directly. However, in the modern times, a live video of a traumatic event, be it an assault, a terrorist attack, or a catastrophic failure, may have the same emotional impact on a person as if they were physically present.
The decision rejected the need for an “objective standard” of what constitutes a "horrifying event," acknowledging that the emotional response to a traumatic experience is subjective, what may be unbearable for one person might not have the same effect on another. This shift in the legal framework provides a fresh lens through which to consider the implications of digital trauma in cases like secondary victim claims in Kenya.
The court also made an important distinction between the “immediate aftermath” of an event, emphasizing that, for the purposes of secondary victim claims, the aftermath should be seen as an “uninterrupted sequence of events.” This similarly reflects the reality of digital exposure, where the traumatic experience doesn’t necessarily end when the live-stream or video ends. The trauma often lingers, particularly when the content is shared across social media platforms, looping the trauma for an indefinite period. This evolving concept of the "immediate aftermath" has crucial implications for secondary victim claims, suggesting that exposure to a traumatic event via technology may extend beyond the immediate moment.
In terms of causality, the court emphasized that it is not necessary for a claimant to demonstrate a specific neurological or psychological mechanism to explain the injury. Instead, it suffices for a claimant to show that there is a causal link between witnessing the event and the psychiatric harm suffered. This opens the door to a wider acceptance of claims where the trauma is mediated through technology, challenging traditional legal frameworks that only recognize direct, physical proximity to an event.
Implications for Kenyan Law
Kenya’s legal system, while heavily influenced by English common law, must now reckon with the impact of technological exposure on emotional and psychological well-being. With the rise of social media, instant messaging apps, and real-time video streams, the emotional trauma of witnessing an accident, a violent crime, or a personal loss is no longer confined to physical spaces. Alcock’s strict requirements for proximity and direct perception, while suited to a pre-digital world, may not adequately account for the emotional and psychological effects of witnessing a traumatic event through technology.
Just as Alcock emphasized the importance of physical proximity and immediate visual contact with the event, the Kenyan legal system must confront whether these criteria remain fit for purpose when the trauma is digitally mediated. In a world where a mother could experience the same psychological harm from watching a video of her child in danger as she would from being physically present, the question is whether Kenya will lead the charge in reshaping the law to recognize the full spectrum of technological trauma.
Drawing from the Paul v Royal Wolverhampton NHS Trust case, it is clear that the legal concept of secondary victim claims must evolve. In Kenya, the digital age poses significant challenges in terms of proving emotional distress. Limited access to mental health resources, combined with the difficulty of proving psychiatric injury through expert testimony, makes secondary victim claims especially difficult to substantiate. Additionally, strict requirements such as proximity and sudden shock may exclude individuals whose trauma is mediated through technology, as these cases do not neatly fit into traditional legal frameworks.
Moreover, many potential claimants are unaware of their rights to pursue secondary victim claims, particularly in rural areas where access to legal information is limited. Further, the courts have significant discretion in determining whether a claimant meets the requirements for a secondary victim claim. This can lead to inconsistent outcomes, with some claimants succeeding while others fail on similar facts.
However, this evolving nature of trauma and victimhood presents an opportunity for Kenyan courts to lead the way in rethinking the boundaries of secondary victim claims. Courts may begin to recognize that exposure to digital trauma, whether through social media, live-streamed events, or viral videos, can have profound emotional consequences that deserve legal recognition. This would require a redefinition of the legal concepts of proximity and foreseeability, as well as a shift in how "shock" and "accident" are understood in the digital era.
Conclusion
In conclusion, secondary victim claims in Kenya must be viewed through the lens of a rapidly evolving technological landscape. The emotional wounds caused by digital exposure can be just as real and devastating as those caused by direct, physical trauma. Therefore, the Kenyan legal system must adapt to these new realities by adopting a more flexible approach to secondary victim claims. This approach should recognize digital proximity, redefine the concept of sudden shock, and develop clearer guidelines for cases involving technology-mediated trauma. By doing so, Kenyan courts can ensure that emotional harm caused by the digital realm is appropriately addressed, providing justice for those whose trauma is transmitted through the pixels of modern media. The question now is whether Kenya will rise to the challenge of this evolving legal frontier.
EDITOR'S NOTE
At ADR & The Law, we pride ourselves on breaking boundaries, and this article is a testament to that spirit. The author ventures into largely uncharted territory, exploring the intersection of secondary victim claims and the digital age—an area that has yet to receive extensive legal scrutiny. Given the novelty of this discussion, references are understandably few, but the argument is firmly grounded in case law, tracing the evolution of secondary victim claims from Dulieu v White to Paul v Royal Wolverhampton NHS Trust. By challenging conventional legal frameworks in light of modern realities, this piece paves the way for further discourse and legal development.
Okochil Raphael, Editor, ADR & THE LAW.
ABOUT THE AUTHOR
Dexter Adaki is a sharp legal mind and a rising force in the field of legal research & writing. As a Trainee Advocate at Kibatia and Company LLP, he navigates the corridors of law with precision and a keen analytical eye. His passion lies in dissecting emerging legal challenges and pushing the boundaries of conventional thought, as evidenced in this trailblazing article. With a firm grasp of case law and a commitment to scholarly inquiry, Dexter fearlessly tackles underexplored areas of legal discourse, offering fresh perspectives that challenge the status quo. His work embodies the spirit of innovation and intellectual rigor that defines the future of legal practice.
For insights, discussions, or collaborations, Dexter Adaki can be reached at adakidexter@gmail.com.
REFERENCES
[i] Secondary Victim Claims – Where are we now? <https://www.dekachambers.com/2024/01/31/secondary-victim-claims-where-are-we-now/> Accessed 18 February 2025.
[ii] Dulieu v White & Sons (1901).
[iii] Hambrook v Stokes Bros (1925).