UNIT 3 - NEGLIGENCE: Pure Economic Loss and Pure Psychiatric Harm Flashcards
what is the test to establish a special relationship and thus a duty for not causing pure economic loss?
Checklist for overall HEDLEY BYRNE AND CAPARO TEST
Is there a special rel between the def and Cla?
1. Did the defendant assume a responsibility towards the claimant?
2. Did the defendant know the purpose for which the advice was required?
3. Did the defendant know that the advice would be communicated to the claimant (either specifically or as a member of an ascertainable class)?
4. Did the defendant know that the claimant was likely to act on the advice without independent inquiry?
5. Was the advice acted on by the claimant to its detriment?
- Was it reasonable for the claimant to rely on the defendant for advice?
- Likely to be some overlap
How would one exclude the liability in the case of PEL ?
- Two important requirements
1. Reasonable steps must have been taken to bring the exclusion notice to the claimant’s attention before the tort was committed.
2. The wording of the notice must cover the loss suffered by the claimant.- ability of a defendant to exclude liability is further limited by the Unfair Contract Terms Act 1977 and the Consumer Rights Act 2015.
- For UCTA 1977 to be applicable, the defendant must be acting in the course of business.
- For CRA 2015 to be applicable, the defendant must be acting as a trader and the claimant must be acting as a consume
- Def cannot exclude liab for death or personal injury resulting from neg.
what must the claimant establish to be owed a duty of care as an A) primary victim and B) Secondary victim?
A) - Requirements for a duty of care to a primary victim:
○ primary victims are owed a duty of care in relation to their pure psychiatric harm, provided the risk of physical injury was foreseeable;
○ for primary victims it is not necessary for the risk of psychiatric harm to be foreseeable.
B) 1. Foreseeability of psychiatric harm. It must be reasonably foreseeable that a person of normal fortitude in the claimant’s position would suffer a psychiatric illness.
2. Proximity of relationship. The claimant must have a close relationship of love and affection with the person who is endangered by the defendant’s negligence.
3. Proximity in time and space. The claimant must be present at the accident or its immediate aftermath.
4. Proximity of perception. The claimant must see or hear the accident, or its immediate aftermath, with their own senses.
OTHER rules from alcock:
- Only a claimant with a recognised medical condition can sue.
- Vague conditions such as nightmares and upset are not enough.
- Post-traumatic stress disorder or severe depression will count as recognised conditions.
- And the condition must be brought about by a sudden shock to the system, rather than a steady build up.
For victims who are not themselves in danger, known as ‘secondary’ victims, the nervous shock suffered must be foreseeable in someone of reasonable fortitude.
