Négligence, Victimes Indirectes et Préjudice Moral en Common Law: Les Limites a la Réparation se Justifient-Elles?

Common law courts have traditionally been reluctant to award damages for emotional harm. This is particularly true in cases of secondary victims of negligence. Preoccupied by the fear of fraudulent claims or the danger of opening the floodgates, courts strive to limit the scope of liability in these circumstances. But how legitimate is the reasoning that has served to support such a restrictive analysis of the decision to award damages for emotional harm? The author explores the limitations of the Canadian courts\u27 current approach and analyzes the basis of their concern. She concludes that not only do the beliefs espoused by the courts lack any sound basis, but that other more subtle factors are at play in the decision to award damages to secondary victims of emotional harm. These factors include the continued social prejudice accorded those suffering from mental illness. Drawing inspiration from feminist critiques of law, the author suggests that the predominance of patriarchal norms in the legal system may at least partially explain the courts\u27 attitude in associating psychiatric harm with female characteristics. Short of actually offering a solution to the problem, the author urges courts and society in general to take a more critical and sensitive approach to the omnipresent social and legal barriers facing the mentally ill