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Introduction

This paper looks at whether Funde, a Mozambican national, has grounds to sue ZNBC television
for damages after airing a documentary without warning viewers of the content that led to
Fundes collapse and leaving half of his body paralysed. It will do so in the light of whether the
newscaster owed a duty of care to Funde or not. It will further ascertain whether the newscaster
breached that duty of care or not. Furthermore, this paper will look at the damage the defendants
breach of duty of care caused to the claimant. Lastly this paper will assess whether the damage
caused to the claimant was too remote or not and then draw a conclusion.
First and foremost, it has to be established what type of liability the corporation has towards
Funde. The newscaster omitted to warn the viewing public of the disturbing images the station
was about to show. The fact that the newscaster later on tender an apology for not cautioning the
viewers on what was about to be aired, shows that the newscaster was negligent. Due to the
personal injury this negligence caused upon Funde, it stands to reason that Funde would have to
consider claiming damages predicated on the tort of negligence from the broadcaster. Having
established this, there is need to look at what the tort of negligence entails.
In order to succeed in establishing a claim in negligence, according to Hedley and Padfield, 1 the
claimant has to satisfy the following prerequisites:

That the defendant owed a duty of care


That the defendant breached that duty of care
That the breach of duty of care by the defendant caused the damage the claimant

has suffered
And that the damage caused was not too remote

In the case of Donoghue v Stevenson,2 Lord Atkin attempted to lay down the general criteria for
when a duty of care would exist. This is a case in which Mrs Donoghue went to a caf with a
friend of hers. While there, they purchased ice cream and a bottle of ginger beer. Mrs Donoghue
consumed part of a drink containing a decomposed snail. The snail was not visible as the bottle
1 S. Hedley and N. Padfield, Tort, 7th edn. Oxford University Press, 2011.
2 [1932] AC 562, H.L

in which the drink was contained was opaque. It is claimed, Mrs Donoghue suffered shock and
gastroenteritis and therefore sued Mr Stevenson, the manufacturer of the drink. The House of
Lords agreed that Mrs Donoghue had a valid claim.
Their Lordships stated that the principle was that:
You must take reasonable care to avoid acts or omissions which you can
reasonably foresee are likely to injure your neighbour. Who, then, in law is my
neighbour? The answer seems to be persons who are so closely and directly
affected by my act that I ought reasonably to have them in contemplation as being
so affected when I am directing my mind to the acts or omissions which are called
into question.
From this, somebody is able to deduce that the viewers of ZNBC television were the neighbours
of the newscaster at the time whom they ought to have considered before airing distressing
pictures of violence. The claimant does not have to be individually identifiable for the defendant
to be expected to foresee the risk of harming them. In many cases, it will be sufficient if the
claimant falls within a category of people to whom a risk of harm was foreseeable. For instance,
the consumer of a product, as is the case in Donoghue v Stevenson.3 The ginger beer
manufacturer did not have to know that Mrs Donoghue would drink their product, all they knew
was that somebody would.
In Anns v Merton London Borough,4 Lord Wilberforce argued that it was no longer necessary to
find a precedent with similar facts, he proposed a significant extension of the situations where a
duty would exist. He suggested that whether a duty of care arose in a particular factual situation
was a matter of general principle. He opined that the courts should use a two-stage test in order
to decide whether this principle was satisfied in particular case. First, was the claimant someone
to whom the defendant could reasonably be expected to foresee a risk of harm? If yes, then there
is a prima facie duty of care. The second stage would involving finding out whether any policy
considerations that meant it would not be desirable to allow a duty of care in a given situation. If

3 Ibid
4 [1978] AC 728 HL

there were are no policy considerations that argued against establishing a duty of care, then a
duty could be imposed.
This does not mean that the defendant has to be able to identify a particular individual who might
foreseeably be affected by their actions. It suffices that the claimant is part of a category of
people who might foreseeably be affected. This is exemplified in the case of Haley v London
Electricity Board.5 The defendants dug a large hole in the road in order to do some maintenance
works. Their workmen laid a shovel across the hole to draw the attention of the passers-by to it.
Haley, who was blind, did not realise that there was a hole, he fell into it seriously injuring
himself. It was agreed in court that the precautions taken were adequate to warn sighted people
of the danger, they were inadequate to protect Haley and others like him. So the question was
whether it was reasonably foreseeable that a blind person might walk by and be at risk of falling
in. Blind people are not so rare as to be unforeseeable. The Court of Appeal said it was: the
number of blind people who lived in London meant that the defendants owed a duty to this
category of people.
Usually the defendant is responsible only for his/her own actions and not for what others do.
However, through the doctrine of vicarious liability, the defendant can be responsible for the
wrongdoing of others. This can be seen in Kirkham v Greater Manchester Chief Constable.6
Kirkham was a depressed alcoholic who committed suicide while in police custody because the
arresting officer had not passed on a warning of his condition, no precautions were taken for his
safety. The police were held liable to his widow. In a similar vein, ZNBC should have considered
the number of Mozambican nationals living in the country before showing such a news item
without taking any precautions. By not taking such necessary precautions, the broadcaster
breached the duty of care owed particularly to the Mozambican nationals living in Zambia.
Where the defendants usually lock the gates leading onto their railway line whenever there is a
train coming, then their failure to do so on one occasion my constitute a breach of duty to the
claimant, who was misled into thinking it was safe. This is true in the case of Mercer v South

5 [1965] AC 778
6 [1990] 2 QB 283

Eastern & Chatham Railway Cos Managing Committee.7 ZNBC usually warn the viewers
whenever they are about to show disturbing pictures on television, but the fact that this time the
coarse pictures were not accompanied by an advance warning, Funde had no reason to believe
that the pictures he was about to see would leave half of his body paralysed. The defendant ought
to have controlled the source of danger to the claimant.
Knowing that Fundes paralysis did not come as a direct result of the violence he witnessed
personally, he falls into what is termed as a secondary victim. 8 In Alcock & ors v Chief
Constable of South Yorkshire Police,9 Lord Oliver set out a definition of a secondary victim:
Although it is convenient to describe the plaintiff in such a case as a
secondary victim, that description must not be permitted to obscure the
absolute essentiality of establishing a duty owed by the defendant directly to him
a duty which depends not only upon the reasonable foreseeability of damage
of the type which has in fact occurred to the particular plaintiff but also upon the
proximity or directness of the relationship between the plaintiff and the
defendant.
The backdrop of the case in Alcock & ors v Chief Constable of South Yorkshire Police 10 is that
the litigation arose from the disaster that occurred at Hillsborough Stadium in Sheffield, which
occurred on 15 April 1989. On that day a football match was arranged to be played at the
stadium between the Liverpool and the Nottingham Forest football clubs. It was a semi-final of
the FA cup. The South Yorkshire police force responsible for crowd control at the match, allowed
an excessively large number of intending spectators to enter the ground. They crammed into the
central pens, trapping spectators already in the pens and in the resulting crush 95 people were
killed and over 400 physically injured. Scenes from the stadium were broadcast live on television
from time to time during the course of the disaster and were repeated on news broadcasts.
7 [1992] 2 KB 549
8 M. P. Mvunga and S. P. Ngambi on Torts, 2011, University of Zambia.
9 [1992] AC 310 HL
10 Ibid

Sixteen claims were brought against the defendant for nervous shock resulting in psychiatric
injury. At trial ten of the claims were successful. Ten of the claims did succeed. The defendant
appealed against the findings in nine and the unsuccessful claimants appealed. The Court of
Appeal found for the defendants in all of the claims. Ten appeals were made to the House of
Lords. These included claims made by brother, sisters, parents, a grand-parent and a fianc. Two
of the claimants had been at the ground but in a different area. Some saw the events unfold on
television, some had heard about the events in other ways. None of the claimants were spouses or
parents of primary victims.
The appeals were dismissed. It was held that no duty of care was owed to any of the claimants.
For secondary victims to succeed in a claim for damages they must meet the following criteria:
1.
2.
3.
4.

A close tie of love and affection to a primary victim


Witness the event with their own unaided senses
Proximity to the event or its immediate aftermath
The psychiatric injury must be caused by a shocking event

So shock occasioned by seeing a traumatic event at close hand may give rise to liability, even
though hearing of the same incident by word of mouth may not. In the Alcock v Chief Constable
of South Yorkshire Police case, it was made clear that claimants who had seen the Hillsborough
disaster on a television screen, but not in person, could not possibly recover. It was also made
clear that this was not a rule about television transmission as such, but only because the images
in the case had been censored. Television broadcasters are subject to a code which forbids
amongst other things, close-ups of people being crushed to death.
Conclusion
Fundes case is a fifty-fifty situation, it can go either way depending on the judges view. I would
encourage him to seek legal redress in the court of law for damages for personal injury and
consequential loss. Looking at the Alcock & ors v Chief Constable of South Yorkshire Police
case, Fundes case might be negated by the fact that he is a secondary victim and that he is
neither the father nor the spouse to the primary victims. Another fact that may negate Fundes
case not to possibly recover damages is that, he witnessed the gross pictures of people being

killed on television. But still, it can be argued that the images that were shown on the material
day were not censored and viewers were not warned beforehand. It is worth giving it a try.

BIBLIOGRAPHY
Case Law
Alcock & ors v Chief Constable of South Yorkshire Police [1992] AC 310 HL
Anns v Merton London Borough [1978] AC 728 HL
Donoghue v Stevenson [1932] AC 562, H.L
Kirkham v Greater Manchester Chief Constable [1990] 2 QB 283
Mercer v South Eastern & Chatham Railway Cos Managing Committee [1992] 2 KB 549

Books
Hedley, S. and Padfield, N., Tort, 7th edn. Oxford University Press, 2011.
Mvunga M. P., and Ngambi S. P., on Torts, University of Zambia Press, 2011.

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