Tort confusion -regarding psychiatric damage

Could someone please clarify this for me:

with respect to primary victims do we need to show the general rules i.e. duty of care (Caparo), breach and causation because there only needs to be shown physical injury or do we need to establish that there is a duty not to cause physical injury - (hence not applying Caparo) but applying the rules of breach and causation? Likewise with secondary victims do we use the Alcock Criteria to establish a duty and then the general rules of breach and causation to establish liability?

Thanks

Reply 1

jacketpotato

20

Caparo lays down the general criteria. They are general guideliness. Cases like Alcock are demonstrating how those criteria might be applied in particular circumstances. You will want to run through Caparoto establish a duty of care; and then go on to consider the particular challenges encountered by people who want to claim for psychiatric loss. This is best done with causation/remoteness, I think.

Reply 2

toodlesrus

OP

jacketpotato

Caparo lays down the general criteria. They are general guideliness. Cases like Alcock are demonstrating how those criteria might be applied in particular circumstances. You will want to run through Caparoto establish a duty of care; and then go on to consider the particular challenges encountered by people who want to claim for psychiatric loss. This is best done with causation/remoteness, I think.

But I was under the impression that the criteria in Alcock acts as a substitute for the duty part- so instead of applying Caparo - one would apply the Alcock criteria and then there would be a need to discuss breach and causation. Or have I got it completely wrong?

Reply 3

MelesMeles

10

With respect, I would very much disagree with jacketpotato's approach.

When seeking to find a duty for pure psychiatric harm, you have three options:

Primary victim status
Secondary victim status
Traditional Caparo v Dickman analysis

If you can bring a claimant within the primary or secondary victim status, then that replaces the need to undertake a Caparo v Dickman analysis. The whole point of primary victim status is that the psychiatric harm does NOT need to be foreseeable (provided that they are in the zone of physical danger), only physical harm need be foreseeable.

If you are using the Alcock/White/Page victim analysis, you do not also do a Caparo analysis. The whole point is that this replaces Caparo in determining whether a duty of care is owed. See the Tort textbooks by Steele or Lunney & Oliphant for a very good explanation of these issues.

Reply 4

toodlesrus

OP

MelesMeles

With respect, I would very much disagree with jacketpotato's approach.

When seeking to find a duty for pure psychiatric harm, you have three options:

Primary victim status
Secondary victim status
Traditional Caparo v Dickman analysis

If you can bring a claimant within the primary or secondary victim status, then that replaces the need to undertake a Caparo v Dickman analysis. The whole point of primary victim status is that the psychiatric harm does NOT need to be foreseeable (provided that they are in the zone of physical danger), only physical harm need be foreseeable.

If you are using the Alcock/White/Page victim analysis, you do not also do a Caparo analysis. The whole point is that this replaces Caparo in determining whether a duty of care is owed. See the Tort textbooks by Steele or Lunney & Oliphant for a very good explanation of these issues.

So Caparo only applies if i can''t establish whether the victim is primary or secondary but does that not imply that there isn't a duty of care owed to the victim anway?

Reply 5

Scarlet rose

4

The primary and secondary distinction is part of the third stage of Caparo in deciding whether it is fair, just and reasonable to impose a duty of care. Psychiatric injury is restricted on grounds of policy. Alcock established the criteria necessary to demonstrate that it is fair, just and reasonable to impose a duty of care on secondary victims. For primary victims Page v Smith sets the test of whether it is fair just and reasonable ie provided personal injury is foreseeable it matters not whether it is physical or psychiatric.

Reply 6

jacketpotato

20

Scarlet rose

The primary and secondary distinction is part of the third stage of Caparo in deciding whether it is fair, just and reasonable to impose a duty of care. Psychiatric injury is restricted on grounds of policy. Alcock established the criteria necessary to demonstrate that it is fair, just and reasonable to impose a duty of care on secondary victims. For primary victims Page v Smith sets the test of whether it is fair just and reasonable ie provided personal injury is foreseeable it matters not whether it is physical or psychiatric.

Thats how I understood it (though its been two years since I did tort and it wasn't my best subject, so you and MelesMeles are probably more qualified to comment than I am!)

Reply 7

toodlesrus

OP

Scarlet rose

The primary and secondary distinction is part of the third stage of Caparo in deciding whether it is fair, just and reasonable to impose a duty of care. Psychiatric injury is restricted on grounds of policy. Alcock established the criteria necessary to demonstrate that it is fair, just and reasonable to impose a duty of care on secondary victims. For primary victims Page v Smith sets the test of whether it is fair just and reasonable ie provided personal injury is foreseeable it matters not whether it is physical or psychiatric.

I have one query with that - if it is part of the 3rd limb under Caparo does the requierments in Alcock not conflict with the requierment of proximity under the second limb of Caparo, clearly if you establish the Alcock criteria you have already established that there is a duty of care and Caparo itself becomes redundant?

Reply 8

MelesMeles

10

Yes, the Alcock/White criteria supersede the Caparo criteria. It is not that it deals with the third branch, but that it wholly replaces the Caparo analysis. The whole point is to avoid the problems within the Caparo analysis.

Reply 9

mimylarose

Hi I desperately need help for my diagnostic presentation for law degree admission, i have been given a scenario about psychiatric damage caused to 3 secondary victims who watched a horrific and fatal accident live on TV due to the negligence of the company, 2 secondary victims are parents to the child involved in the accident and the 3rd secondary victim was just the lodger of the couple and knew the dead child for a month. I'm not familiar to law, but I was told to go and prepare this case( to get a place in law degree), I don't know really what to expect and um terrified.
I managed to read some books and online regarding this issue and realised it's more complicated than I thought , I'm thinking if the law forbid to broadcast any image that are horrifying to views then the parents of that child did witness the event as if they were at the scene, therefore can recover for damage, and for the lodger, I think he is not entitle to anything since he was not related to the victim. I have to clarify that the TV company who broadcasted the event is not the one who cause the accident, but another company due to the negligence where those children were supposed to landing from a airship. so who is liable for the damage if any?
please I need your thought asap.
cheers

Tort confusion -regarding psychiatric damage

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