In Galli-Atkinson v. Seghal, a woman got closer when she arrived at the scene of a car accident in which her daughter was fatally injured and saw her daughter`s body in the morgue within two hours. In Taylor v. At Nova Limited, the plaintiff was less successful when she witnessed the death of her mother three weeks after an accident. When the proximity requirement as a central control unit was reintroduced, these three stages were found to be «components» of adhesion rather than stand-alone testing. [20] For example, liability may arise between complete strangers when positive acts occur involving foreseeable physical harm; However, in the case of negligent omissions and false information, it is necessary to prove a direct and foreseeable link of the damage. [21] Secondary victims are those who suffer psychiatric injuries when they witness sudden and shocking events to others with whom they have a close bond of love and affection. The circumstances in which a secondary victim can claim damages are limited by five «control mechanisms» drawn from Alcock v. Chief Constable of South Yorkshire,[2] a decision of the House of Lords resulting from the tragic Hillsborough disaster.
One of these determining factors is the need for the secondary victim to be present at the time of the incident or immediately thereafter.[3] Physical and temporal proximity is required. 76 The `clear and precise` determination of the court having jurisdiction `promotes the legal certainty sought by the Convention`. Case C-116/02 Erich Gasser GmbH v MISAT Srl [2003] ECR I-14693, para. 51. 2 Non-contractual claims are generally defined negatively in relation to contractual claims. See Case 189/87 Athanasios Kalfelis v Bankhaus Schröder [1988] ECR 5565, para. 18. Jansen, N, `The Concept of Non-Contract Obligations: Rethinking the Divisions of Tort, Unjustified Enrichment, and Contract Law` (2010) 1 Journal of European Tort Law 16CrossRefGoogle Scholar, 17, notes that there is no complete definition of non-contractual obligations, but only a list of obligations which, under EU law, are non-contractual in nature, such as `tort, crime, unjust enrichment, negotiorum gestio ou culpa in contrahendo». See Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations [2007] OJ No. L 149/40, Article 2(1). Even if such a definition must be interpreted autonomously, 11.
According to the recital in the preamble to the Regulation, `[t]he concept of non-contractual obligation varies from one Member State to another`. The duty of care to protect others from psychiatric harm is different from that of physical harm, with additional controls and distinctions in place to limit liability. [43] An accepted psychiatric injury claim must result from a sudden shock (caused by a traumatic event),[43] and the victim must have ordinary strength and mental strength and not be particularly vulnerable to the harm in question. [44] While prima facie due diligence for physical harm is required when the criteria of proximity, predictability and policy are met, liability for psychiatric harm depends on a person`s association with a traumatic event; People who are not physically at risk may not have a duty of care unless they can meet several relational criteria. [45] In English tort law, a person may owe a duty of care to another person to ensure that he or she does not suffer undue harm or loss. If such an obligation is found to be breached, legal liability is imposed on the injured party in order to compensate the victim for all losses suffered by him. The idea that individuals owe a duty of care to foreigners, whereas such obligations were previously found only in contractual agreements, developed at common law throughout the 20th century. The doctrine was extensively developed in Donoghue v Stevenson,[1] where a woman succeeded in founding a ginger beer manufacturer that owed her a duty of care where it had been produced negligently. Subsequently, the concept of obligation has broadened into a coherent judicial review which must be fulfilled in order to be able to plead negligence. Following the introduction of the two-step due diligence test, there was a significant judicial withdrawal of the test, which was widely considered too comprehensive and too easy to apply to cases that might be contrary to public policy.
[13] The test was formally rescinded in Murphy v Brentwood District Council,[14] where the House of Lords invoked the practice statement to depart from the Anns test. The resulting due diligence test – which is still a good law today – can be found in Caparo Industries plc v Dickman. [15] One of the main criticisms of the Anns test was that it combined the proximity of relationship test with the foreseeability of injury. [16] Although Lord Atkins` neighbourhood principle emphasized both the need for an immediate relationship and the foreseeability of harm, the Ann test did not draw such a clear distinction. Richard Kidner explained that this has led the courts to sometimes ignore relevant political considerations[17] and to encourage «lazy thinking and vague analysis». [18] The resounding test attempts to reconcile the need for a control device, the proximity of the relationship with the predictability of damage. Lord Oliver`s speech in Caparo Industries plc v Dickman summarizes the due diligence test:[19] Traditionally, the courts have rejected allegations that police owe a duty of care to victims of crime. In Hill v Chief Constable of West Yorkshire, no duty of care was established between the police and Jacqueline Hill, one of the victims of the Yorkshire Ripper. This lack of due diligence has been confirmed in a number of other cases, both for lack of proximity (a criterion required in all formulations of the doctrine of due diligence) and for lack of public order. [57] [58] Does that sound a little unfair to you? Well, it seems that the courts also feel uncomfortable. The cases before the Court of Appeal are Paul v.
Royal Wolverhampton [2020] and Polmear v. Royal Cornwall [2021]. In Paul (which we covered last year in our LLB guide), two sisters who witnessed their father`s fatal heart attack were able to recover, after a hospital failed to diagnose his heart disease a year earlier. How close is the price? Similarly, in Palmear, where parents witnessed their daughter`s fatal collapse, even in circumstances where the local hospital had carelessly failed to diagnose their illness. The evolution of purely economic damage follows from the case of Hedley Byrne & Co Ltd v. Heller & Partners Ltd[6], in which it was recognised for the first time that a duty of care may arise from not causing economic harm to others through negligent misrepresentation. [54] In this case, advertising agency Hedley Byrne turned to Heller & Partners for a credit check on a third company, Easipower Ltd, before executing advertising orders on its behalf. Heller & Partners indicated that Easipower Ltd was solvent and, relying on this statement, Hedley Byrne placed advertising orders for them. [55] When Easipower Ltd was subsequently declared bankrupt, Hedley Byrne commenced legal action against Heller & Partners, alleging that they had a duty of care when advising on a credit report. Although Hedley Byrne was unsuccessful in his action,[c] the House of Lords recognized that such an obligation may be owed where there is a relationship of trust between two parties. [55] The first element of negligence is the statutory duty of care. This is the relationship between the defendant and the plaintiff, which must be such that the defendant is required to ensure that no harm is caused to the plaintiff in all the circumstances of the case.