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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

This means that there can be no claims for solatium doloris.

2. reasonable foreseeability of the psychiatric injury: Courts will use the test in Page v. Smith.

a primary victim (a “participant” in the event) only has to prove that some kind of injury (physical or psychological) was reasonably foreseeable.

a secondary victim must prove that it was reasonably foreseeable that:

a. psychiatric injury would be caused

b. to a person of “normal fortitude.”

3. proximity:

a. the secondary victim’s relationship to the primary victim (“class of person”)

b. the secondary victim’s proximity to the accident in time and space

c. the means by which the psychiatric injury occurred

d. the manner in which the psychiatric injury occurred

Numbers 3 & 4 (means and manner) are sometimes lumped together, as they were in Alcock.

This is like the Anns test, but with extra conditions added.

Conaghan and Mansell, The Wrongs of Tort, pp.34-44. (psychiatric harm)

The distinction between physical and psychiatric harm is medically indefensible; the two are often inseparable—the law has not kept up with medical knowledge.

Many of the policy reasons given for limiting claims for psychiatric harm apply equally well to physical injuries (evidentiary difficulties, the risk of fraudulent claims, etc.)

So it really all comes down to floodgates.

The various rules that have been devised through the cases are incoherent and unjust.

What is normally called the Page v. Smith test is actually derived from the comments of Lord Oliver in Alcock.

The requirement that the secondary victim’s psychiatric harm be foreseeable in “a person of ordinary courage and fortitude” contradicts the principle that a tortfeasor takes her victim as she finds him.

In Page v. Smith, it was ruled that a primary victim’s psychiatric harm does not have to meet standards of reasonable courage and fortitude. (Does this distinction between primary and secondary victims have any moral basis?)

The rules for distinguishing primary and secondary victims are also problematic. Different law lords defined it differently in the Alcock case, partly because some were trying to extend liability while others were limiting it.

The Alcock decision can be contrasted with the decision in Frost v. Chief Constable of the South Yorkshire Police (1997), in which police officers traumatized by the Hillsborough tragedy were compensated.

In the Alcock case, the needs of the victims were irrelevant to the court: it was turning social facts into legal questions.


Injury to Economic Interests

“Pure” economic loss means economic loss without injury to person or property.

In civil law, recovery for pure economic loss has never been a problem, in theory.

However, civil law has used causation as its limiting factor (to prevent floodgates).

Civil law has resisted limiting the meaning of “another” in (a.1053,CCLC) or (a.1457) in order to limit liability.

Elliott c. Entreprises Côte-Nord Ltée., [1976] R.J.Q. 584 (C.A.). (CB2p106)




Elliott hit Giannotti with his car. Giannotti was a 49% owner and employee of ECN, and worked two shifts as a painting foreman for the price of one. Giannotti was unable to work for 10 months following the accident, and ECN had to hire two foremen to replace him. ECN sued Elliott for the additional cost of hiring an extra foreman, as well as for benefits it paid to Giannotti during his recovery.  

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