[vahik92]

Hi guys, I've got a really short question to ask

Caparo established that negligence requires foreseeability, proximity and fair, reasonable and just.

Alcock established that for psychiatric injury for secondary victims, proximity will be found if there is proximity of time and space, close tie of love and affection and proximity of perception.

But the cases that I read don't really mention foreseeability in depth, so I'm a bit confused. Would it be right to say that if the requirements in Alcock are established, then foreseeability should be implied? (i.e. if there is close tie of love and affection, time and space, perception, the defendant ought to have known the foreseeable result?) Or is foreseeability a completely different test that must be met separately in order to succeed in a claim for psychiatric injury? And does this mean that even if the Alcock requirements are met, still the claim could fail because the result was not foreseeable?

Thanks in advance!

[Qoph]

(Original post by vahik92)
Hi guys, I've got a really short question to ask

Caparo established that negligence requires foreseeability, proximity and fair, reasonable and just.

Alcock established that for psychiatric injury for secondary victims, proximity will be found if there is proximity of time and space, close tie of love and affection and proximity of perception.

But the cases that I read don't really mention foreseeability in depth, so I'm a bit confused. Would it be right to say that if the requirements in Alcock are established, then foreseeability should be implied? (i.e. if there is close tie of love and affection, time and space, perception, the defendant ought to have known the foreseeable result?) Or is foreseeability a completely different test that must be met separately in order to succeed in a claim for psychiatric injury? And does this mean that even if the Alcock requirements are met, still the claim could fail because the result was not foreseeable?

Thanks in advance!

It would be hard to argue that if the Alcock requirements are met, psychiatric injury was not reasonable foreseeable. But in theory it is possible. Lord Keith for example said that "in addition n addition to reasonable foreseeability liability for injury in the particular form of psychiatric illness must depend in addition upon a requisite relationship of proximity between the claimant and the party said to owe the duty"

[vahik92]

(Original post by Qoph)
It would be hard to argue that if the Alcock requirements are met, psychiatric injury was not reasonable foreseeable. But in theory it is possible. Lord Keith for example said that "in addition n addition to reasonable foreseeability liability for injury in the particular form of psychiatric illness must depend in addition upon a requisite relationship of proximity between the claimant and the party said to owe the duty"

Thank you

[Dewsy]

Also, in Bourhill v Young it was held that for secondary victims you need to prove foreseeability of (i) a psychiatric injury (ii) to a person of ordinary phlegm. (Note - this contradicts the general rule in tort that you take your victim as you find him)

Which is different to primary victims where you only need to prove foreseeability of an injury (physical or psychiatric) - Page v Smith

[vahik92]

(Original post by Dewsy)
Also, in Bourhill v Young it was held that for secondary victims you need to prove foreseeability of (i) a psychiatric injury (ii) to a person of ordinary phlegm. (Note - this contradicts the general rule in tort that you take your victim as you find him)

Which is different to primary victims where you only need to prove foreseeability of an injury (physical or psychiatric) - Page v Smith

Thanks!

Can I just ask, when does liability for psychiatric injury arise with regards to primary victims, is it only when there is a risk of personal injury e.g. when you drive very fast near the victim - or does it arise in other situations as well?

[Colin_S]

Page v Smith should give you that answer re primary victims. It is a subjective test.

[TimmonaPortella]

(Original post by Dewsy)
(Note - this contradicts the general rule in tort that you take your victim as you find him)

How so? The point on my understanding is that it is not foreseeable that any harm will be done if it is not foreseeable that harm will be done to a person of ordinary phlegm. This is not a case where it is foreseeable that harm will be done, but where there is a larger extent of harm caused due to some vulnerability of the victim.

Surely it is open to argument that if the specific person is known to the defendant to be especially sensitive in terms of mental health there will be a duty even where harm is not foreseeable to a person of ordinary phlegm? It has been a while since I looked at this, but I don't remember anything in Bourhill ruling out such an argument.

It may be that I've entirely forgotten the case. Just throwing stuff out there.