Van+Praagh

Shauna van Praagh: Who Lost What? Relationship and Relational Loss *this is the same article we read last year re: the Palsgraf case. * Introduction: poem by William Carlos Williams. Captures a sense of enjoyment and simple pleasure. Think about 1457, Civil Code. “Every person has a duty to abide by the rules of conduct which lie upon him so as not to cause injury to another.” *After this: Donoghue and Stevenson. Idea of taking reasonable care where acts might be likely to injure neighbors. à All of these are articulations of a duty, and an attempt to capture truth and guidance about human behavior. * Linden : “D & S […] challenges us to dream of a beautiful world where people care about one another, feel responsible for one another, and even—dare I say it—love one another.” (162) PERSONAL RELATIONAL LOSS: CML: no one can bring a claim against a tort-feasor for relational harm stemming from the death of another person. [none of a survivor’s losses are recognized]. A wariness of recognizing relational harm. CVL: much more generous and open. No immediate distinction between immediate victims and “ricochet” victims. CML: “WHO ARE YOU?” à Relational harm is not fully recognized in the CML. There is legislation that permits a right of action for certain categories of people in the case of fatal accidents. [Broadened categories in recent years]. For instance, the addition of same sex partners to the list. *Broadening also includes grief, loss of companionship as compensable. *Approach taken by even generous CML legislation is based on //relational status//. This means that there is an implicit conception of valuable relationships, by societal standards. à Re: accidents, a list of status-defined beneficiaries will always fall short, and go too far [some overcompensated; some, because they are not in a personal relationship with the victim, will receive no compensation]. When we ask “Who are you?” in order to process a claim, we are making assumptions about networks and close connections and support. “We are less interested in supporting that survivor in her emotional loss or even breakdown, than we are in easing the burden of being left alone without a relationship formed and sustained with someone else.” (165) ** Child-parent, spousal relationships are classical proximate relationships. Other relationships never seem to give rise to successful nervous shock claims. *Law confuses 2 kinds of relational loss: 1. damage to a personal relationship, and 2. injury in relation to a wrongful event. [a person with no relationship to the direct event can face trauma]. *Like accident legislation, nervous shock jurisprudence makes assumptions about relationships and the effects of their demise. CVL: “WHAT HAVE YOU LOST?” *no delimiting by relationships. In cases of wrongful injury, however, this question is left open. Plaintiff’s claim is open, rather than derivative. Question 1: What loss has been suffered: concerned with the quality of injury. Question 2: Is the loss the result of wrongdoing: //causation// is the principle limiting mechanism here. Close relationships make it more likely that a “direct connection” will be established between wrongdoing and loss. *solace for grief [//solatium doloris//]. Precisely the paradigmatically recognized relationship in CML that gives rise to non-pecuniary, moral loss in CVL. Gosset marks a turning point. Difficulties in accurately assessing personal grief. *CML seems more certain, but less generous re: compensation. Very different frameworks.
 * indirect relationships: where there is a death/loss, many can be affected. Civil and Common Law traditions have different starting points for understanding this.
 * If the important relational aspect here is between nervous shock plaintiff and psychiatric injury producing event and not between nervous shock plaintiff and bodily injury-suffering plaintiff, then there should be no distinction between primary and secondary victims. [Victim of shock is an immediate/primary victim of wrongdoer’s negligence.]