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Prosser, William Lloyd
1958.
Kausalzusammenhang und Fahrlässigkeit.
p.
5.
Article contents
Extract
In an article in the Canadian Bar Review on the recent case of Bourhill v. Young Dr. Cecil Wright says that this is ‘one of the most important decisions in the law of tort which has appeared since Donoghue v. Stevenson.’ But, as he points out thereafter, it is difficult to determine from the speeches of the law lords exactly what principles it has established concerning the ‘ambit of risk’ or the extent of liability for nervous shock. That this doubt is fully justified is shown by the fact that Professor Winfield in his Text-book of the Law of Tort deals with the case in the section entitled ‘Remoteness of consequence (or damage)’ while Dr. Stallybrass suggests that it is primarily authority on the problem of negligence. Perhaps this difference of opinion reflects a certain degree of uncertainty in the judgments themselves, for their Lordships, although reaching the same conclusion, do not seem to have been in complete agreement concerning the grounds on which they did so.
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References
2 (1943) 21 Canadian B. R. 65–78.
3 At p. 65.
4 At p. 70: ‘It is a matter of much greater difficulty to determine from the speeches of the law lords the extent of liability for nervous shock, or, putting it another way (in line with the general views expressed in that case), what the nature of a defendant's duty may be or what defines the “ambit of risk” or “area of potential danger.”’
5 2nd ed. at pp. 89–90.
6 (1943) 59 L. Q. R. 277.
7 At p. 99.
8 At p. 98.
9 At p. 102.
10 At p. 105.
11 Haynes v. Horwood [1935] 1 K. B. 146Google Scholar. and the other rescue cases are obvious examples.
12 At p. 98.
13 Harding v. Edwards and Tatisich (1929) Ex. 0. L. R. 98.Google Scholar
14 At p. 104.
15 Palsgraf v. Long Island R. R. (1928) 248 N. Y. 339Google Scholar; 162 N. E. 99.
16 At p. 108.
17 At p. 109.
18 At p. 111.
19 At p. 117.
20 (1934) 34 Columbia L. R. 41, 43, Duty in Tortious Negligence.
21 At p. 109.
22 [1901] 2 K. B. 669, 684.
23 [1939] 1 K. B. 394.
24 At p. 400. Cf. (1943) 59 L. Q. R. 150; Charlesworth, , Bourhill v. YoungGoogle Scholar, where a view, contrary to that expressed in this article, is stated.
25 Law of Tort, 2nd ed., p. 89.Google Scholar
26 (1935) 216 Wis. 603; 258 N. W. 497. The American cases are discussed by Magruder, , Mental and Emotional Disturbance in the Law of Torts (1936) 49 Harvard L. R. 1033Google Scholar. The American cases on the whole favour the ambit of possible physical impact test.
27 For the more recent American oases, see (1938) 48 Yale L. J. 303.
28 Supra, n. 23.
29 At p. 103.
30 Supra, n. 22.
31 (1888) 13 App. Cas. 222.
32 [1925] 1 K. B. 141.
33 Supra, n. 23.
34 [1921] 3 K. B. 560.
35 L. R. 3 H. L. 330.
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