Tort Of Negligence Case Analysis

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It is widely recognized that to establish the tort of negligence, the first thing a claimant should prove is the defendant owns the claimant a duty of care. In order to avoid problems such as “floodgates of litigation” and “crushing liability” and ensure justice between parties, the courts have made every effort to define the proper boundary of duty of care using various mechanism of tests at different times. A modern approach worth mentioning in the field of duty of care is the Caparo criteria deriving from Caparo v Dickman . This so-called “threefold test” indicates that three “ingredients” are necessary to establish a duty of care and briefly they are reasonable foreseeability, proximity and fair, just and reasonable. This test, as a general …show more content…
The major issue in this case was to assess the foreseeability of personal injury including both physical and psychiatric harm. Page failed in the Court of Appeal because his psychiatric injury was not reasonably foreseeable for a person of ordinary fortitude in such situation. However, Lord Lloyd from the House of Lords overturned this statement and allowed Page’s appeal saying that there was no need to prove that psychiatric injury was foreseeable and the plaintiff could be regarded as “primary victim” as long as he could show that physical injury was reasonably foreseeable. Also, Lord Lloyd suggested in primary victim cases the claimant did not need to satisfy the proximity element which was necessary for identifying secondary victims. Some judges criticized it on the ground that liability would be extended under this test and might cause problems such as …show more content…
The case McLoughlin v O’Brian is a milestone in this area. In McLoughlin, Court of Appeal didn’t impose the defendant a duty of care because the claimant wasn’t as the scene of the accident although her injury was foreseeable. Later the House of Lords overturned it and made the defendant liable by widening the understanding of “immediate aftermath” to circumstances such as witnessing through television (subsequently considered in Alcock). Lord Wilberforce’s “control mechanism” put forward in this case was later reformulated in Alcock. Lord Wilberforce also thought that different from primary victim, reasonable foreseeability of psychiatric injury to a person of normal fortitude was part of the test to establish the duty of care in cases of secondary victims. But foreseeability itself is not sufficient and there are three additional requirements should be satisfied which are known as Alcock control mechanism governed by the decision in Alcock v Chief Constable of South Yorkshire . First, the plaintiff must have a close tie of love and affection with the “immediate victim”. In Alcock, it shows that it is arbitrary to rigidly define the categories of relationship. The plaintiff must prove the existence of the close tie expect for some legal presumed relationships like parents and children. However, this qualification can be discarded when it comes to
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