Question 5 2009 Zone A

In your view what are the principal criticisms that can be made of the present law concerning liability in tort for psychiatric damage? If there were to be a statutory reform of the law in this area, what would be your principal recommendations?

  According to Stapleton, English law of liability for psychiatric illness is the area of law of tort where the “silliest” rule now prevail. Todd thinks the law is in a “dreadful mess.” Jones regarded it as a long list of anomalies.

  The problem in this area of law is that it lacks coherency and consistency. There are many conflicting principles. Psychiatric illness is not as identifiable as physical injury, and the fact that an alarming amount of potential claimants can arise from a single incident explains why it would be ridiculous to apply egg-shell skull rule to cases concerning psychiatric illness. Indeed there ought to be a different rule governing this area of law in order to avoid floodgates of litigation, but isn’t the rule of primary victim and secondary victim as ridiculous s applying egg-shell skull rule in this context?

  There are three questions regarding primary victim and secondary victim that are difficult to answer: who is primary victim, who is secondary victim, and why do we need to create a distinction between primary victim and secondary victim?

  Lord Lloyds defined primary victim as a person to whom physical injury is foreseeable. However, the test of reasonable foreseeability is already a pre-condition to recovery, along with the pre-condition of recognizable psychiatric illness. Why does a claimant need to overcome the same hurdle twice? Furthermore, recent cases such as Ferrell v Avon and Ferrell v Merton clearly extended the category of primary victim to cases where the claimant is not exposed to risk of physical injury.

  According to Lord Oliver in Alcock, primary victim is involved immediately as a participant in the event. However, in W x Essex CC, it is impossible to say that the parents were involved in the sexual abuse by the 15-year-old boy they fostered. It was their kids that were involved, not them; and they clearly did not fear for their safety – they feared for their kids’ safety instead. Still, they were classified as primary victims. On what basis precisely were they classified as primary victims?

  In CJD Litigation: Group B Plaintiffs v Medical Research Council, the claimants developed psychiatric condition upon realizing that treatment given to them could expose them to risk of developing CJD. The claimants obviously feared for their lives but the courts refused to classify them as primary victims. On what basis precisely were they refused to be classified as primary victims?

  Lord Oliver defined secondary victim as a person who is a passive and unwilling witness of injury caused to others. Lord Wilberforce said there are additional requirements that a secondary victim must satisfy: a close tie of love and affection between the claimant and the immediate victim, physical and temporal proximity, means of perception must be sight or hearing of the event or its immediate aftermath and the manner in which psychiatric illness was caused must be induced by shock.

  The problem here is: how is proximity and immediate aftermath defined? When an event occurred over several days, as in North Glamorgan NHS Trust v Walters, how do we determine when an event ends? If a mother knew that her daughter was kidnapped at 1pm. She started looking for her daughter at 1.20pm, after packing some essentials. She located the right building at 2.05pm but couldn’t determine which room, or which floor (assuming that she could not get help from the police due to negligence on the police’s part). She continued searching within the building, and at 2.25, she received a call from the kidnapper, asking her to hurry with the money (which she did not have), and let her listen to the screamings of her daughter due to torture. The kidnapper continued calling her after that, approximately once every ten minutes, each time her daughter’s screaming getting worse. At 2pm the kidnapper called again, saying they were impatient, and they would burn the girl. The mother heard the final screamings, followed by silence, and the kidnapper hung the phone. The mother never managed to find the corpse until 5.30pm. She suffered psychiatric illness. Will her claim succeed?

  The mother will face many hurdles. When does the event end? Does it end at 3pm, when her daughter was killed; or at 5.30pm, when the corpse was found; or at 2.25pm, when she first heard her daughter being tortured; or at 1pm, when she first realized her daughter was kidnapped? Precedents would say the event ended at 3pm, which means she found the corpse 2 ½ hours later – is this immediate enough to be considered as immediate aftermath? It is out of the 2 hour rule. The fact that she constantly receive calls listening to her daughter screaming raise another question: is her psychiatric illness shock induced? There are no clear guidelines as to how the additional proximity requirements are to be satisfied. The rules are complicated.

  Furthermore, the fact that rescuers, employees and bystanders are classified as secondary victims conflict with the additional proximity requirements: how can a close tie of love and affection between the claimant and the immediate victim be established in such cases? Wouldn’t it render the additional proximity requirements redundant?

  Dealing with psychiatric illness is like fighting a dragon which, each time its head is severed, grows a head that is more vicious than before. The fact that medical science is still struggling with this area indicates that new situations will always arise. The law must therefore be flexible in its approach and capable of adapting to new situations.

  The Law Commission Report proposed that for a claim to succeed, the plaintiff must be owed a duty of care by the defendant, and such duty would arise when either psychiatric or physical injury is reasonably foreseeable. There is no need for psychiatric injury to be adduced by shock. No definition will be given for psychiatric injury. No practical significance shall be attached to categorization of primary and secondary victim. There is no need to establish proximity in time and space. There should be a fixed list of relationship where a close tie of love and affection exist.

  I personally agree with most of Law Commission Report’s recommendations except for a few. I think psychiatric injury should be defined as psychiatric illnesses that are within the International Statistical Classification of Disease and Related Health Problems. Requirement for proximity in time and space should be an alternative requirement when a close tie of love and affection could not be established. This is to deal with rescuers, involuntary participants, employees, bystanders and other such claimants.

  The problem is, medical sciences is still at a developing stage in this area. So is the law. Is there really a need to freeze the law so soon? The law is still in its embryonic stages: why not wait and see what will happen as time goes by? The law might appear to be immature but so is the medical sciences. Until the scientists and researchers had come up with real explanations as to what causes psychiatric illnesses and how to measure the degree of illnesses, meanwhile, why not leave the matter to the good sense of judges to do justice?

I got my driving license approximately two years ago, but I had not driven since then. I only started to drive again a month ago, and I had “successfully” caused a number of scratches to my car, which totally un-cool my cool silver Myvi SE (I know white is currently the coolest colour for car but the status of silver for car will never fade in my heart. I honestly and sincerely believe that silver is the colour of elegance and class!) . It happened in a shopping mall’s indoor parking where I panicked when a car got into my way and I swerved unnecessarily, which caused me to hit the wall. Yeah, dumb.

But that’s the point I’m trying to make. An amateur driver is more prone to accidents if compared to a driver who had been driving for years. When we see a car with a P sticker, we all tend to be more cautious so as to not get into their ways, right? (unless we notice that the driver is some old uncle and auntie, which lead us to think “okay so the driver is not the P license holder but the parent of the driver, I don’t have to tolerate with him.”) We expected them to be… clumsy.

Apparently some judges do not agree with our view. Let’s look at what happened in Nettleship v Weston [1971].

So there’s this lady, Mrs Weston who asked her friend, Mr Nettleship to teach her to drive. Mr Nettleship only agreed to the task after he was ensured that he was covered under her comprehensive car insurance policy. Of course, like all other learner-driver, Mrs Weston had accidents during her learning process. Guess what happened? During the course of a lesson when she was driving, she failed to straighten the car after having turned a corner with the result that it mounted the pavement and hit a lamp-post. Mr Nettleship broke his kneecap as a result of the collision, and sued for negligence. The trial judge dismissed his claim on the basis that the defendant only owed him a duty to do her best, and that she did not fail in that duty.
The judgment sounds fair to me but wait a minute, let’s see what Lord Denning MR had to say about this:

“The learner-driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience and care, who is sound in mind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity…”

Conclusion? Due to the fact that the standard of duty of care expected of learner-driver is the same as an experienced, skilled and careful driver, Mrs Weston, who is the driver at that time, is in control of the car and is liable for both the damage to the lamp-post and the injury done to Mr Nettleship.

I must say that this is a decision which is pretty fair for Mr Nettleship, who obviously would want to be compensated for the injuries he suffered, but I really feel so sorry for Mrs Weston. Being an amateur driver myself, I understand her predicament and difficulties so well – after all, most of us learn to be better through mistakes, don’t we? Most of us learn to ride a bike through nasty falls, isn’t it?

Lord Denning is an active judge who has an opinion on almost everything and I salute his way of thinking and the creative approach he adopted in interpreting statutes in order to enable justice to prevail, but seriously, to come up with a decision like this… I wonder if Lord Denning had ever driven a car before.

  Have you heard of the news about the 14-year-old girl who was intoxicated and raped/sexually assaulted when she went karaoke with her friends?  5 suspects had been caught.  

I believe the news first appeared in Sin Chew approximately two or three days ago. There were no names reported so as to protect the identity of the victim, and the tone of the article was obviously siding the victim. It was written in a way as if the reporter was writing a story, not reporting a news. No pictures. It didn’t appear on the first page but the follow up on 12/12/2009 did (complete with pictures and all, albeit censored). There was a line saying something like “thanks to our previous publication this matter had received massive attention from all parties, hence the immediate apprehension of the 5 suspects.”

  Out of curiosity, I flipped through The Star. I couldn’t find any articles in The Star reporting about this matter.

  Taking into account the fact that the headmaster of the school refuse to shoulder responsibility for what had happened on the basis that it did not happen within the school compound and how the victim’s case had been postponed prior to the publication, I guess I can safely conclude that if the publication was really to be credited for the apprehension, then the media really ought to have more freedom of expression.

  This leads us to a discussion of qualified privilege.

  Per Lord Atkinson in Adam v Ward, the traditional qualified privilege applies where the person who makes a communication has an interest or a duty to communicate the information to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This privilege had been extended to apply in other situations. In later cases, qualified privilege was allowed in respect of politica speech, subject to a requirement of reasonable care and finallly, in Jameel v Wall Street Journal Europe Sprl, it appears to apply to publications in the media generally, as long as the issue is in public interest, and it is not published with malice, and the reporter reporting it exercised responsible journalism. This is a departure from the conventional qualified privilege, where reciprocity is the essence of the privilege.  

  The question is: what kind of issues are in public interest? Issues that interest the public are not necessarily issues of public interest. The public loves to know which star is hooking up with which star, and who’s breaking up with who, Who has fake boobs and who had more plastic surgeries and stuff like that, but that does not seem like issues of public interest (on the contrary it seems like invasion of privacy to me).

  Political issues are matters of public interest as we need to know who’s leading and ruling us tomorrow; it affects our lives (like, whether this leader will make us pay more taxes), and reportings of criminal offences must be matters of public interest too, as we all want the bad guys locked up so we can sleep with no fear.

  However, in reporting matters like political and criminal issues, it is of utmost importance to exercise responsible journalism because there’s a line between reporting and defaming, and the line between these two is a real thin one. Lord Nicholls of Birkenhead in Reynolds v Times Newspapers Ltd gave ten guidelines for responsible journalism:

1. The seriousness of the allegation.

2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.

3. The source of the information.

4. The steps taken to verify the information.

5. The status of the information.

6. The urgency of the matter.

7. Whether comment was sought from the plaintiff.

6. Whether the article contained the gist of the plaintiff’s side of story.

9. The tone of the article.

10. The circumstances of the publication.  

  All that said and done, with all the applaud and cheers for Sin Chew’s success at prompting investigations which perhaps protect pontential victims, at the end of the day I wonder if anything done had actually made the victim felt better? Perhaps it made her felt better knowing that justice still exists, but the harm to her was done and it could not be undone.

  If I was put in her shoes, I believe I would have gone mad within days. I would have thought that I do not deserve to be loved anymore. I salute her for her ability to stand strong and for not losing respect in herself, and I wish that she will continue to stay strong, and my sincerest prayers for her to find the light at the end of the tunnel, to have a whole new and better life, and to find her true love someday in future.

I’ve watched Jump, a movie about a village girl who loves dancing and had travelled to the town to make her dreams come true. It’s a typical nobody-to-somebody Cinderella story with an “and they live happily ever after” ending with a modern day Prince Charming.

What left me thinking was when the employer told the village girl that she should be realistic. She’s got a job in the factory, and she should do her best in her job instead of trying to be a good dancer, which is not something that a normal village girl is expected to achieve. She should realize that pursuing unrealistic dreams cannot fill her tummy.

Of course, in the end the village girl did become somebody (what do you expect? This is a movie. It is supposed to be dramatically unreal). However, I find myself agreeing with what was said by the employer more. Perhaps two years ago when I was still immature, I would say that it is more important to pursue dreams but this is not how I think now.

The importance of being realistic leads us to a case: Fairchild v Glenhaven Funeral Services Ltd.

In this case, the employee were exposed to a dangerous substance – asbestos dust during their course of employments with a few employers. The exposure to asbestos dust had led them to suffer from mesothelioma, a type of cancer. The problem here was that human science could not prove which employer caused the employee to suffer from mesothelioma, because the precise manner in which asbestos dust caused the cancer was unknown to medical science.

Ideally, the employee need to prove on balance of probabilities that the employer’s negligence had indeed caused him to suffer from cancer, but this is now impossible due to the limitation of medical science. Does it mean that the employer would not be held liable? Lord Hoffman and Lord Rodger said no. The limitation of medical science must be taken into account and therefore, the employee need to prove it on balance of probabilities. The standard required would be lowered because judges have to be real too. They cannot expect the employee to prove something that no one else at that time can prove. Judges do not require the employee to carry out a mission impossible.

Therefore, if I am the village girl in Jump, I think I will stick to my job in the factory, and I will only attempt to pursue my dreams when I have the ability to pursue my dreams. Maybe some will argue that this is the easy way out, but I think I’m merely being practical, and there’s nothing wrong about being practical. It could also be argued that by the time I have the money to learn to dance, I might be too old to do so, but have you guys saw the news about a bunch of old Taiwan ladies who were in their 60’s actually try to learn Ballet, and they actually danced reasonably well after learning for two years?

I’ll give priority to my tummy over my dreams, but speaking of dreams, I do hope to learn pole dancing someday in future. Heh.