140 Negligence: Duty of Core

In Horsley v Maclaren," the Ontario Court of Appeal stated that an

omission would give rise to liability in negligence if the defendant's
behaviour had caused the plaintiff to suffer more inconvenience.
Liability arises from reasonable reliance on the defendant's express or
implied promise to protect the plaintiff from harm.

G. STATUTORY POWERS•
(6.095] The exercise of functions and powers by government agencies
and organisations are mostly derived from statutes. In order to determine
the powers extent and the limitations set, reference must be made to the
provisions in the particular statutes.

(6.096] Public authorities are usually given discretion in carrying out

their statutory duties. If the authority concerned acts or omits to act in a
particular way as the case may be, and the act or omission falls within the
discretionary power of the authority, it is likely that the courts will hold
the authority not liable, as opposed to the authority not doing something
which is required of it as a duty."Statutory powers will however not protect

'\'~,~
i
the defendant if the act or omission complained of exceeds its authority
or is ultra vires.~
\t~i ~w
~ ·✓
w~" tovt
'd°Plf
~ ~tA ~~(-ft
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1
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.
H.~PSYCHIATRic ILLNESS s,(.;tnt I<
- - .-
pl~ll .
[6.097] The courts have been cautious in holding that a duty of care exists
in cases where the type of damage suffered by the plaintiff is one of nervous
shock, though the preferred expression is 'psychiatric injury or illness'.90
Psychiatric illness may occur either as a result of a deliberate a'ct which is
intentional in naturet or from negligence.
ilbX\Jrl\~ t t,.~((\,1\1\, .
[6.098] If the act is done intentionally, the principle in Wilkinson v
Downton91 already discussed elsewhei:e, will apply.

(6.099] P-sychiatric illness includes all forms, of mental illness, neurosis

and personality change that are medically recognised. 92 This mus! be
differentiated from severe fear or emotional distress, grief or sorrow, which
·,.f you ~v \'J,v\JO\AJ f~<A tff~v ~~t\9 att ,-ui J.ll•f t"'1U.
.,,._hl.J
87 (1970} 1 Lloyd's Rep 257. '"'"..
o" ~
t,,LS(,
,~ .J-
1 p,tj.t, Jt-JJ'.~ JJ #f,li/ fl tiJ..
\A .. ti y,tf'\ I &v4, .ffA ~ D
88 See Chapter 15. &,.(_ CCII ~ v;r
89 See for example, Sri fnai {Pu/au Pinang) Sdn Bhd v Yong Yit Swee & 9 Ors (1998) 3 AMR 2847. .. l
The decision was however set •aside on appeal in (2003) 1 AMR 20; (2003) 1 MU 273; CA. OtA,.() J)l,'l,1" '
90 See Attia II British Gas pie (1988) QB 304 at 311.
9.1 (1897] 2 QB 57, see Chapter Two.
92 Alcock II ChiefConstable ofSouth Yorkshire Police (1991) 4 All ER 907, HL.
1
Psychiatric Illness 141

by themselves do not give rise to liability except where the fear, distress,
grief or sorrow lead to either a physical illness, such as hypertension,
heart attack or a positive psychiatric illness such as anxiety neurosis or
reactive depression,,, Even though damages for psychiatric illness are in
principle recoverable, the courts have always been reluctant and cautious
in awarding compensation. There are several reasons for this, namely: the
difficulty in assessing injury or damage in monetary value; the difficulty in
determining the truth of the plaintiff's allegation; to avoid undue difficulty
on the defendant's behalf, for if claims of this nature are not limited, every
plaintiff who suffers any kind of emotional disturbance would !nstitut~ a
claim and therefore open the 'floodgates'; and the difficulty m proving
that it is indeed the defendant's act which caused the psychiatric illness
suffered by the plaintiff. Plus all the above factors would result in an unduly
lengthy litigation.

1. The earlier cases

[6.100} Initially the courts would only allow a claim for psychiatric illness
if there was proof of actual physical injury.94 This view changed when shock
alone, without physical damage was held to be recoverable in Dulieu v White
& Son~ where the plaintiff suffered shock which resulted in a misca:rriage
when the defendant's van crashed into a public bar where she was serving
drinks. The court held the defendant liable for causing the plaintiff to be in
fear of her own personal safety. Si Cb ~ « ".. vi vi> fYI
l UI ft cl o-,11' .
[6.101] The sp,pe ofrecoverabilitywa-s-expan-aea beyond tffe prfiffilr{victim=7
@ncluae asecoodaryvrctim.JnJ.lqmbrpokvStokes Bros5Nhere the majority
of the Court of Appeal held that if a mother may receive compensation for
fearing for her own safety, there should be no reason why a claim from a
mother who feared for the safety of her children should be denied.
.
[6.102] Thereafter, the scope for recovery was extended to include any
person who sustained psychiatric illness due to fear of immediate physical
i~jury to near relations. In Hinz v Berry,.,, the plaintiff recovered damages for
.
severe shock upon witnessing her husband's death and her children's injuries.
.
[6.103] ln@ffia,rySim'defio,f,~he defendant negligently ran over an
1nfant while he was reversing a car out of a garage, knowing that the infant's

93 Mcloughlin v O'Brian (1982) 2 All ER 298 at 311 per Lord Bridge.

94 Victorian Railway Commissioners v Coultas (1888) 13 App Cas 222.
'•1 95 (1901) KB 669 at 67S.
\ 96 (1925) 1 KB 141. • I

97 (1970) 2 QB 40.
98 (1964) 1 WLR 1317. • \1\tl( 10,ll:IAII ~ ~ Ol (tu'"J
· l• a C\\,\1 ~ v l'\l'':I
1ll'>nJ.ll~ """" : ~ V11 \ ~\\tv \Al~~ ftCWJ ~t~ ~n~ ~~
-"~~ -; ct s-t\.~~"~- \llt~f)\ •
 142 N~ligence: Duty of Core

father was Within earshot. The father

the scream suffered nervous shock when heh
s from his son and his claim against
the defendant succee~ardd
e .
[6.104] In the Malaysian case of
Zainab Ismail v Morimuthu & An
court allowed the plaintiff's claim for or.., th
nervous shock sustained as a 'r ~
of seeing her daughter knocked dow
n by the defendant's lorry. esu t
[6.~05] Apart from relationships bet
ween spo uses and parent and child fo
wh,ch there exist a presumption of clo
seness, love and affection, a plai~ti;
who does not fall into either one of
these two categories with regard to h'
relationship with the victim can nev
ertheless recover for psychiatric illne 15
~n the ground that he is closely inv
olved with the accident. For examp~S,
in Dooley v Comme/1 Laird
& Co Ltd,IOO the plaintiff, a crane
nervous shock when the cable of the driver, suffer~
crane snapped and the load that wa
being carried fell into the hold of the
ship in which his workmates wers
working. The plaintiff believed that
his workmates would be injured, an~
the defendant, who was the plaint
iff's employer was held liable for the
nervous shock sustained by the plainti
ff.
[6.106) All these cases however
required that the secondary victim
present at the scene of the accident, or close to it so that the be
perceived by his senses. accident is

2. The precursor of the current law

[6.107] The requirement that the
secondar y victim be at or close to the
scene of the accident changed in
the landmark case of
~ Here, the plaintiff'
s husband and three of their childr
Involved in a road accident caused en were
by the defendant's negligence. One of
~ the children died and the plaintiff's
~ rt seriously injured. The plaintiff was infhuorm sband and two_other children were
ed of the accident two hours after
ctr k.. it had happened and upon arriva
l at the hospital she was Informed of
tK rofll death of one of her children. She als the
o saw the copdition of her husband and
t~t the other two children, as a consequence of
~ -~ shock. At first instance, it was held tha
which she suffered l)ervous
t nervous shock was not foreseeable
IA~ : J. in those circumsta
nces. On appeal, the Co ~ of Appea
\il,411--~ i i '~ l ~ ~a t" "' 6s
"uolthe~
~t oS > m ee n ewV o i
At the House of Lords all five Law-Lo for ne~!th,~~ e ~f!~~ ...
rds allowea ttle plaintiffs appeal. The
main issue in this case was whether
the plaintiff could recover as she was
ltri~\ ~ti\\ w k ~ -. ta ~J ~ U,¥\~~i . 9
f} ~ i 1N ~w
n~ \ 'nw1wt'\ l' i 3 wri:u.
99 1195sJ Mu 22.
100 {1951) 2 lloyd's Rep 271.
\!J n~ou.\ v~ ~ ~ ,..
v, ~vA
101 (19821 2 All ER 298, Hl.
@\'<\ua,(O\ . . ~ v\v~t ot
.• t ~OI
"~ fJIO
~
tl' 4~ ~ Q> $~ ()\ \ \lv\n\\ ()'J\1~\,
..t OJ.;
J
\\i,~.\ ~ 0.
t,\) u.,,.J lM" ~
i01 (o'fl 1~<it :: it""" Ct\~ 'ol . . \~
"1tv.v ~ <tL,~. so~ %\Mt w
~ ~ \i\l:\\tt-·
 ,W'0) ~tt~i\~ pt! (J~Ltii'ff
\. ~- ""'t I' l f f v~J~,o \
iith·. A

-\}n-tle, Jf'AU- \m,,, &1'41\ CA ~r~t1h,'~/ -· '"'•~ '"11'-

@J ~ iu v ~ t~ ru" 1 . . . p Cl- {.t( Z-1; r+,
~ i I: ,, l
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cJ UJ: •,. II I,
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S¥ch/otric IUneJ
~t 143
;rthe scene oft e ace, ent. The court d W"-' · d)' U N 'if
r,ot ak was reasonably foreseeable in the . eclded however th C\f t'-4 o-ii; Lt,~
sh~cg whether there existed a poliPf wh~~~umstances, the'ontt nervous .r(J.,u . •.
be1n of care. Lord Wilberforce formulated thn:gatived the exisrquestion
dLJt{foreseeability of injury by shock alone e aftermath test' a~;ce of a~
tha . Was insufficient. stated
1 The additional following factors m
[6,108 ust also be cons'd
I ered, namel .
( ) The class of persons who can sue is importa y.
a must have a close emotional relations"'· nt._Personswhomavc1a·1
111
The cIoser the tie between the p.laintiffP Wtth the· Primary
· victimm
the 1ikeliho9d of the plaintiff receiving co~n~ the _victim the highe;
Lords further held that a parent or spou ~II nsation. The House of
· t he scope of a duty of care·on th se Wt be petsons who come
,.
within
e part of the defendant.
(b) There must be physical proximity to th .
and space. Physical ·proximity is extendeed~cc~dent in terms of time
does not actually see the accident but se ~ include a plaintiff who
of it. It was on this basis that the plain:~~ e:~m~diat~ aftermath
allowed. s carm in this case was

(c) The means by which the shock is caused st . h

.h I . 'ff mu e1t er be as a result
of w hat t e P amn sees, hears or alternative! if the . . . .
upon the immediate aftermath ofthe dam - V I ' pla1~tiff comes I
.d ·· h age. n,ormation relayed es
by a t hir party 1s t erefore not a recognised th d f .
me o o pereeption.
~
(d) flnally, the defendant's negligent act must result . h' .
d 'ti th t · d"
con I on a 1s me 1ca1ly recognised. '" a psyc 1atnc

[6.109] ~s a_ ~e.sult of ~is ca~e, ~asonable foresight ofinjury through shock

or psychiatric illness 1s not m itself a sufficient basis for which damages
may be recovered. Oth~r factors as laid down above have to be fulfilled.

3. The current law

[6.110) The c.urrent law on liability for psychiatric illness must now be seen
thro_
ugh the decision in A/codcvChiefConstableofSouth Yorkshire Police;'Kll
The·def~ndant was sued in a tragedy where part of a stadium collapsed,
due to their negligence in allowing toe many spectators to enter aconfined
area of the stadium. The coll~pse resulted in 95 deaths and more than
400 injured. This accident was televised live and thereafter reported in

102 (1992) 1 AC310; (1991) 4 All ER 907, HL

 . · ~ st,~~ ~~ ~tN-u..y
W"1,J,
\Vv~~ ·M\tv...~ ~-.\~~ f)lj~ a{ ~c,J, Mt ~ ;f.
"~~1
144 :~cevf~~t~;e ~ ~ ,tt-iJ ~ .\-l,.l IU~r,.f. ~ ~
ti' 1,111.111iu 1.1t-11lt~ .-.fft• .uwv1 ""a -
• the news broadcasts~u sequently 16 people claimed for nervous shock,
I
of which four were at the stadium at the time of the accident, although
they were not in the area where the disaster occurred, and the rest saw
the bodies of their relatives at the mortuary. ,o ne plaintiff was the fiancee
of one of the victims. There were no claims mage by parents or spouses.
The defendant admitted liability for negligence towards those who were
killed and injured, but denied that they owed a duty of care towards the
plaintiffs. The plaintiffs argued that a duty was owed to them if damage In
the form of psychiatric illness was reasonably foreseeable.
, \""11>\°\ ~v\. lC\ \ ~~~ ·
, ~ (6.111] The House of Lords held that a claim for nervous shock may
.. succeed if firstly, it is rieasonablyforeseeablethat the plaintiff will sustain
psychiatric illness due to his clpse relationship of love and affection witl:t
the primary victim; and there is physical proximity between the plaintiff
and the victim in terms of time and space. The nature of the relationship
between the plaintiff and the victim is also an important factor. In the
present case, the court held that one of the plaintiffs had failed to prove
that he did enjoy a close emotional tie with his two deceased brothers,
and his claim was therefore denied. The court further held that the shock
must be ca·used by actual sight or sound of the accident or its immedi'a te
aftermath.~The plaintiffs i.n this case failed t he 'immediate aft~rmath' test
as .t hey only saw the bodies some nine hours after the tragedy, unlike
the- plai ntiff in Mcloughlin who saw the victims about two hours after
the accid.e nt.

[6.112] In summary, the current law on liability for psychiatric illness

requires the following considerations:

(a) It must be reasonably foreseeable that damage in the form of

psychiatric illness will occur. Foreseeability depends on the nature
of the relationship between the plaintiff and the victim, whjch
must be one based on love -and affection which in turn mu·st be
proven in court. The presumption that such a relatjonship exists
between spouses and between parent and child is now rebuttable,
although the. courts would readily presume that the nat ure o.f
relationships between spouses and parent and child is more
likely than not based on love and affection, as c0mpared to the
relationship between say, cl0se friends, where,the plaintiff would
have a more difficult task to convince the ceurt of the existence of
such a close emotional tie .
•
(b} ,Psychiatric illness must be a·s a result of what the plaintiff himself
perceives with his senses. Even a third party unrelated to the primary
victim may claim if he sees a tragedy of exceptional horror. The test
 Psychiatric Illness 145

is whether a reasonable man who is not prone to distress would also

suffer nervous shock in the same situation. The scope of duty as la-id
down in Mcloughlin has in fact been extended beyond spouses and
parent and child.

(c) There must be proximity between the plaintiff and the accident in
terms of time and space. This mear:1s that the plaintiff must either
see the accident, hear the accident, or be physically present at the
scene of the accident immediately thereafter. W,hat is 'immediate',
depends upon the facts of each case. In Alcock for instance, the
arrival of the plaintiff eight to nine hours after the accident did not
satisfy the 'immediate aftermath' test.

(d) The·rneans by which the plaintiff comes to know about the accident
is relevant. Psychiatric illness as a result of being informed about the
accident by a third party is outside the scope of liability. In Alcock
itself it was held that a television coverage which did not specifically
focus on any identifiable individuals would mean that the plaintiff
did not see or hear the accident or its immediate aftermath.

(e) The plaintiff must suffer a medically recognised psychiatric illness.

In this regard, it has been held that the precise nature and extent
of the psychiatric illness need not be foreseeable.103 As long as the
plaintiff is able to prove that a person of ordinary fortitude would
have sustained shock in the circumstances, it does not matter that
·that particular plaintiff is extraordinarily sensitive.*

(6.113] As Street observes, the case law on psychiatric harm or illness

mostly cmncerns post-traumatic stress disorder ('PTSD').105 lf the guidelines
laid down in both McLaughlin and Alcock were to be adhered to, for a
secondary victim to succeed in his claim for psychiatric harcm, he must
establish PTSD. This was not strictly the case in Vernon v Bosley (No 1).'0 '
The plaintiff was called to the scene of an accident where he witnessed
the unsuccessful attempts to rescue his children from a sinking car. His
two children drowned. The plaintiff became ill. His business and marriage
failed. The defendant argued that the plaintiff's illness was not caused by
the shock of what he witnessed, but by pathological grief at the loss of
his children. The argument put forward was that pathological grief was
not PTSD. The Court of Appeal however allowed the plaintiff's claim. As a

103 Bri~ v,Brown (1984) 1 All ER 997.

104 Mcfarlane II EE Caledonia Ltd [i994) 2 All ER 1 at 14.
105 See Street on Torts, 15th edn (Oxfo(d University Press, 2018) at P 63.
106 (1997) 1 All ER sn, CA.
146 Negfigen~: Duty of Care

secondary victim, he had satisfied the requirements of close~

with the primary victim and proximity to the accident. It did nat1onship
that his illness consisted of grieF .as well as PTSD. ot rrtatter

(6.114) That the mental anguish must be of a kind Which is ..

recognised has been echoed in Thlruvonnamali a/I A/Qgirisom; Pi//~ ed,~alty
Club."'4 The plaintiff, a medical doctor, was a member of ·the 0::Dtners
credit card. Due to a mistake on the part of the defendant, a co drs Club
°
letter was sent to the plaintiff's wife informing her of his de~th. Thn 1ence
subsequently sued the defendant for shock, fear and mental e Plal~tiff
The court denied his claim even :h~ugh it ~cknowledgett the. ~n~u~s~.
discomfort and even anger at the misinformation about his deau/ ~•~tiff s
0
emotions of ~nxiei are nat recoverable. ur, .~. ~.11 dinary
~ wt~ MO ·J£1tt- ~C(JI CJ, vr,n'ur-tf. t.;r""l/
\ (),l, tl-l- at /...,, rw
UAJtf .ur,,; 18 1tttir/ ·
4. §Lconclarv~$Prima~u· " 1 .
- '-t~·~~~ t\W«l9tr --'1 ...... - (IL .,. .,.
(6.115) A distinction must be made between a primary and a s
victim. If the plaintiff himself suffers physical injury and' cons:t ondary
psychiatric illness, he is classified as a primary victim.'°' quently

(6.116] The courts have allowed recovery for psyehiatric illness to pl •

1
who did not have the requisite relationship of lave and intimacy w~~tiffs
primary victims~These plaintiffs are us~~lly res.auers andJar Partfoi the
Rescuers are generally accorde-cl privi.lege by the faw, perhaps beca:ants.
moral weigKtiness of their act transcends any moral, social or polJcy rese the
to restrict claims based on close emotio.nal ties between the pla·i nti;~ons
·
t he primary · ti m.
v1c and

L,. ~ \.,~ ff\(b~ \)\tt~H:..

(a) ' Rescuer ~~ ~:1')~ ti\i~~' ~it~i ·
[6.117) The privilege1ccorded by the law to•resauer:s was never greater
than in the older cases. In Chadwick v British Railways.BaqrcJ,,liQ·the pl,aintiff
who witnessed a terrible railway accident went to th,e-sc::ene of the disaster
to help reseue the victims. He subsequently suffered nervous shock as a
result of witnessing the conseguences of the disaster-. The court allowed
his claim as he was deemed to be within the reasonable coritemplatien of
per-sons who might suffer nervous sho~k,as a result of tOming to the aid
oJ the injured passengers.. t,+Y
~uiJl~ --) t,;t;~ ~J
~Y\Yt~~: 'P mi\ ,i,'t. \\· ~v.»U
107 Which by itself ls irrecoverable.
108 {2007} 1 AMR 700.
109 Dufieu ,11 White [19011t<B 669.
liO [1967) 1 WLR912.
 Psychiatric Illness
147

-------:
18 Hale v London Underground Ltd,,. the defendants were h .
(6,1 1 1
ychiatric Illness sustained by the plaintfff.fireman who e_d ltable ·
th
for e pse operati.ons dLJring a fir,e at a London underground t · ~ssiste~ In
the rescu rain Station.
The justification for the im,posttion of a duty of care t
(6 119]
• ded on the defendan.t's 'fauIt, f-or creating
. a situation whio rescuers
h. .
1s foun 1 Ch d . . k Ii . c
., Nowadays, a w,c app es 1n a\Jour of the rescuer wh invites
f . h.
rescue, h bl'
mber of t e pu . t • c ere e 1s
a n,e I\

1201 Where however, he is a member of the emergency services such

[6, . men and ambulance crew, recovery is not automatic. In the En r h
as fi_r~ n In White v Chief Constable of South Yorkshire Pofice 111 gl~s
dec1s10 d ff . . d , po icy
.s.d~rations ptaye an e ective ro1e 10 lsc1Uewing 'tlalms by polic
con ' rs for psychiatric illness-suffered by them as a consequence of resc;
officetions during the Hillsborough disa~ter. . ,. . . .
opera Q)~ ~c,.i t'\0 4fHJr! ~ltlhoriJri• P w1tk t11(~rY'
,
(b) Mere bystander ·
[G.lll] Psychiatric injury to a bystander w~o is unrelated to the primary
. ·ti' m is gen~ratty unforeseeable. ln .Bourhil/ v Young"' where a pregnant
:~man suffered a miscarriage through the shock of seeing the aftetmath
of a road ac~ident, the court held that as she was not within the area of
foreseeable impact, the defendant owed her no duty of care.

(c) ~ pystanderwho is a participant • .

[ 6.1221 The rule diffe·rs slightly when the bystander is a partkipant. In \ '
('v1cFarlane v EE Caledonia Ltd,ns the plaintiff was employed as a painter l
on an on rig owned and operated by the defendant$. One night while the I~
plaintiff was on a sbpp0rt vess-el some 550 metres away from the oil rig, a
series of massive e.xplosions occurr:ed on the rig. The plaintiff witnessed the
explosians and consequent destruction of the rig beforehe was evacuated
by helicopter. The closest the plaintiff came to the fire was 100 metres
when the support vessel he was on moved towards tile rig in an attempt
ta render-assistanae. The plaintiff claimed damages from the defendants
for p-sythiatric illness suffered as a result pf the events he had witnessed.

Ul [1993) PlQR Q30.

1i2 Haynes v .Harwood [1935)1KB 146, CA. . . -- d'
113- [1991) 1 All ER,l ; HL thhe clalmswere,allowe~ then the pohce rescuers- wo1.1ld have rewve(e
but not \tie relatives of th'e victims.
114 {1943] AC-92.
115 [1994) 2 All ER 1,