Nervous Shock, Nervous Courts: The ANNS/Kamloops Test to the Rescue

Abstract

This article examines the tests employed by the courts in determining liability in tort in cases of psychiatric damage or nervous shock. The author explores the current controversy surrounding what criteria should be used in determining if and when a duty of care should be established. The article focuses on the development of an analytical framework to be used in establishing a duty of care in cases of psychiatric damage. The author begins with an examination of the development of the law in this area and how the courts in Canada are addressing the issue today. Here the author explains that Canadian courts have not adopted a uniform approach in determining issues of establishing a duty of care. The author then moves on to a discussion of the new primary/secondary victim paradigm recently developed in the United Kingdom, but argues against its incorporation as a model for Canada. Instead the author argues that the Anns/Kamloops test should be adopted as the standard test to determine issues of duty of care intort cases of psychiatric damage. In reaching this conclusion the author is supported by the approachof the courts in duty of care issues on pure economic loss cases.