LAW 435: Tort 1

1.Muhamad Afiq Farhan Bin Rasul.

2.Nor Adwa Isyraq Bin Nor Azman.
3. Anwar Mirza Bin Jasmi.
Past Year Question Oct 2008
1st Situation.
Mimi a school teacher was helping the children to cross the road at the time of the accident.
She was not injured but the sight of the carnage drove her almost berserk. She suffered
post traumatic stress disorder and had a miscarriage three days later.

2nd Situation
Haziq, a traffic police officer, went to the aid of the children when he arrived at the scene
ten minutes later. What he saw and experienced affected him so badly that he suffered from
chronic depression and subsequently could only hold a desk job.

3rd Situation
Mrs. Tan was at home watching the 12.30 news on TV 4 when it was reported that a terrible
accident had occurred involving 12 Standard One school children from Sulaiman Primary
School. Mrs. Tan had a daughter, Mei Mei, in that class. Scenes of the accident were shown
and Mrs. Tan was sure that she saw Mei Mei’s bag lying on the road at the scene of the
accident. Unknown to Mrs. Tan then, Mei Mei had thrown away her bag and managed to run
away before the truck hit her classmates. Mrs. Tan was never her self again after the
accident. The doctor diagnosed her as suffering from nervous shock.
 ISSUES
Whether Mimi, Haziq, and Mrs. Tan may succesfully claim for
negligence of psychiatric illness from Vijay’s negligence.
Mimi: 1st Victim-The plaintiff herself is involved in an accident but
she has not suffered physical injury, yet the shock gives rise to post
traumatic stress disorder, so she will be classified as primary victim.

Haziq: 2nd Victim- Haziq is a member of the emergency services

which is from police department. In the English decision in White v Chief
Constable of South Yorkshire Police, policy considerations played an
active role dissallowing claims by police officers for psychiatric illness
suffered by them as a consequence of rescue operations during the
Hillsbrough disaster.

Mrs. Tan: 2nd Victim- Mrs. Tan is not at the scene of the accident.
 Element of Negligence
1)Duty of Care
Based on neighbor principles as explained by Lord Atkin.
 In Donoghue v. Stevenson, lord Atkin said that neighbor is someone who
was directly affected by our action.
1. Foreseeability Test : Whether there is damage happened.
2. Proximity Test : Who will be affected by your action?

2)Breach of Duty of Care

 Blyth v. Birmingham Waterworks.
Negligence is the omission to do something which a reasonable man, guided
upon those considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and a reasonable man
would not do.
3)Damages
Causation in fact = a chain of causation between the breach and the
damage.

 Cork v Kirby Maclean Ltd

“If the damage would not have happened but for the particular fault, then
that fault is a cause of the damage; if it would have happened just the same,
fault or no fault, the fault is not the cause of the damage.”
 Application

 Vijay owed Duty of Care.

 Foreseeability test : Because of his
ignorance, he died while driving the truck
and causes multiple casualties involving the
children.
 Proximity test : He could reasonably foresee
that the illness is serious and can cause
death and he could injure another road user
if he continue to driving.
 Vijay breach the Duty of Care.
 If the reasonable man was on Vijay’s shoes, he could be
aware that if he suffers from serious illness, he should
get some rest or avoid driving on the road.
 The damage is not too remote.
 if Vijay take precautionary steps not to drive when he
knows he suffers from heart attack, there is no damage
or injuries suffers by the children.
The injury is reasonable forseeable
Plaintiffs must reasonably foresee that they can suffer from psychiatric
illness if the victims involved in an accident that is caused by Vijay’s
negligence.

 Mcloughlin v. O’Brian.
Facts: The plaintiff’s husband and her 3 children were involved in a car
accident. Later, she was informed about the accident and the death of one of
her children. Then, she suffered from shock.
Held: The house of lords held that the illness suffered by the plaintiff can be
reasonably foresee because of the injury to her family members that is
caused by the defendant’s negligence.
 Application
1. The defendant owed Mimi duty of care because it was reasonable forseeable
that she would suffer injury from nervous shock when the sight of the
carnage almost drove her berserk. The shock she suffered was the
reasonably foreseeable result of the physical proximity between the plaintiff
and the victims in term of time and space.

2. Mrs. Tan could reasonably foresee that the illness can happen because of the
defendant’s negligence. Without knowing the real situation, it can be say that
Mrs. Tan could have shock because she saw Mei Mei’s bag on the road where
the accident occurred although Mei Mei could run from the accident.
Medically Recognised

Plaintiffs must prove that the shock they suffered must be

recognized by medical practitioner or doctor.

 Jubli Mohd Taral Taib v. Sunway Lagoon.

The court held that the medical evidence from Dr. Osman Che
Bakar, who is psychiatrist specialist, is legit and acceptable. But the
evidence from Juwairiyah Jaafar, who is a counsellor from Public
Services Department, is not acceptable.
 Application
1. Mimi also suffered traumatic stress disorder and miscarriage due to the
incident. If the psychiatric illness is medically recognized by the medical
practitioner or doctor, she may fulfilled this test.

2. Haziq suffered from chronic depression due to his duty at the scene and
subsequently could only hold a desk job, but as he is a rescuer he may failed
this test because the

3. Mrs. Tan, who suffered from shock after hearing about the news, has consult
the doctor. The doctor said that Mrs. Tan has suffers from nervous shock.
The medical evidence from the doctor is acceptable thus Mrs. Tan has
fulfilled this requirement.
 Familial Test
Mrs. Tan must prove that she has close relationship with her
daughter, Mei Mei.

 Alcock v. Chief Constable of South Yorkshire.

There a claimant who lost his brother and brother-in-law,
grandson and fiancée. The court held that the vital factor of the
existence of relationship between primary and secondary victim
is not limited by certain relationship but open to any relationships
that would have prove by the plaintiff to have love and affection
 Application
Situation 1
Haziq who is a member of the rescuer is not a family member of the
children that is involved in the accident. He does not have any
affection with the victims. Thus he may failed to fulfilled this test.

Situation 3
By applying this facts to above situation, it can be say that Mrs. Tan
may have fulfill this test. This is because Mei Mei is her daughter and
there may be close relationship between them. The mother-daughter
relationship also may have proved that there is a presence of love and
affection since Mei Mei is still in primary school and still need love
attention from her mother. Thus, Mrs. Tan may passed this test.
Temporal Test
To fulfill this test, Mrs. Tan must be at the scene.

 Alcock v. Chief Constable of New Yorkshire.

The house of lords dismiss the claim for psychiatric illness because the
plaintiff has failed the immediate aftermath test as the plaintiff saw the
bodies nine hours after the accident at the mortuary. This case can be
distinguished from Mcloughlin v. O’ Brian. In this case the plaintiff saw her
injured husband and children two hours after the accident, which means
the plaintiff could still pass the immediate aftermath test.
Situation 2
Application
Haziq may successfully fulfilled the immediate aftermath test since he
arrived at the scene 10 minutes after the accident occurred. So the sight of
the tragedy drove him almost berserk.

Situation 3
Applied to above situation, Mrs. Tan may not fullfilled this test. The reason is
that Mei Mei does not heavily involved in that accident as she luckily run
away from the road. There is no reason why Mrs. Tan must fulfill this test
because there are no severe injuries happens to Mei Mei. So, Mrs. Tan may
failed to pass this test.
 Spatial Test
The last test that must be fulfill by Mrs. Tan is spatial test. This test
requires the plaintiff to hear or sense the accident without any aided
senses. The plaintiff must see or hear the accident her/himself
without any interference from third party.

 Alcock v. Chief Constable of New Yorkshire.

A plaintiff has watched the disaster on television but there is no scene
showing the suffering of the recognizable person. The court held that
this was not equivalent to sight of hearing or immediate aftermath.
 Application
Situation 2
Haziq who was a police officer went to the aid of the children so there are proximity
between him and the accident in terms of time and space. This means he saw the
accident or physically present at the scene of the accident immediately thereafter and
not comes to his knowledge of being informed by a third party.

Situation 3
By applying to the above situation, Mrs. Tan knew about the accident when watching the
news on the television. Mrs. Tan also did not see her daughter’s sufferings or injuries in
the news, but only see her daughter’s bag lying on the road where the accident happens.
Thus, Mrs. Tan does not fulfill this test.
 Conclusion
In the light of above discussion, the defendant may owed Mimi duty of care since she has
fulfilled the three tests which are element of negligence, reasonable foreseeable and
medically recognized. Meanwhile, Haziq claim may failed under the ground that he is a
police officer that policy consideration disallowing claims by police officers for psychiatric
illness as a consequence of rescue operations besides he failed to fulfilled the familial test.
Other than that, Mrs Tan does not fulfilled in temporal and spatial test. This is because Mei
Mei does not heavily involved in that accident as she luckily run away from the road. There
is no reason why Mrs. Tan must fulfill this test because there are no severe injuries
happens to Mei Mei. Moreover, Mrs. Tan also did not see her daughter’s sufferings or
injuries in the news, but only see her daughter’s bag lying on the road where the accident
happens.