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LOSS OR DAMAGE - Coggle Diagram
LOSS OR DAMAGE
PSYCHIATRIC INJURY
In negligence tort = loss can be psychiatric harmThe psychiatric harm must be either = medically recognised psychiatric OR shock-induced physical condition
- Grief/fear NT sufficient but PTSD us
Policy arguments for restricting claims for negligently inflicted pure psychiatric harm: Floodgates / Crushing liability / Fraudulent claimsBystanders and Rescuers = NO special status so must be classified as a victimThere are 3 types of victims
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2. PRIMARY VICTIMSSomeone who suffers psychiatric harm NOT physical as a result of reasonable fear for their own physical safety (objective test)
They are involved in the traumatic event and are therefore in the area of dangerDuty of care test1. Psychiatric harm must be medically recognised + material2. Physical harm must be reasonably foreseeable
- NO = no duty of care
- YES = if there a precedent to apply?
- NO precedent = would duty be imposed in Caparo context?
a. Forseeable (already established)
b. Proximity = geographical proximity
c. Fair, just and reasonable = if defendant negligently puts claimant in fear of their safety
3. SECONDARY VICTIMSSomeone who suffers psychiatric harm due to fear for someone else's safety as they witness traumatic event / immediate aftermath, normally a close relative NOT in fear for their own physical safety / in danger areaDuty of care test - The Alcock criteria 1. Psychiatric harm must be reasonably foreseeable by ordinary person in the same circumstances2. Proximity of relationship between the claimant and 'the victim'
- Relationship of close ties of love and affection with victim presumed for: parent/child / husband/wife / engaged couples
- NOT presumed for: grandparent/grandchild / siblings BUT can try to prove it
3. Proximity in time and space to the accident
- Claimant must have been present at accident / immediate aftermath = seen or heard
- Aftermath valid if = same condition as they had been at accident
- Being told about accident NOT valid
Medical crisis cases = where SV witnesses death from medical condition (very rarely successful)
1. A doctor does not owe those who witness a ‘medical crisis’ a duty of care
2. Distinction between ‘accident’ cases and ‘medical crisis’ cases
3. For secondary victim to recover damages, they must be present at scene of accident / immediate aftermath
4. NO requirement that psychiatric injury must have been caused by a sudden shock to the nervous system
5. The accident need not be horrifying
6. A gap in time between defendant’s breach + accident will not bar recovery = matters claimant’s proximity in time and space to the accident
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PURE ECONOMIC LOSS
Economic loss that arises where there has been no damage to claimant's property / injury to them > generally no duty of care is owed for pure economic loss BUT EXCEPTIONSExamples
- Economic loss not flowing from damage to person or property
- Loss arising from damage to property of another in which they have no proprietary interest
- Defective items = cost of repairing an inherently defective item is unlikely to succeed
EXCEPTIONS TO THE GENERAL RULE
Distinction between pure economic loss caused by a negligent act and negligent statement
If pure economic loss caused by negligent act = NO duty of care.
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2. Wills
Relationship between solicitor + testator BUT if there is negligence in relation to will = beneficiary suffers a loss SO solicitor owes duty to beneficiary
3. References
IF employer provides reference there is duty of care to provide accurate reference as by giving reference, company assumed a responsibility
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