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Pang Koi Fa v Lim Djoe Phing
Pang Koi Fa v Lim Djoe Phing
[1993] 2 SLR(R) 366; [1993] SGHC 153

Suit No    : Suit No 1112 of 1988 (Consolidated with Suit No 791 of 1987)
Decision Date    : 2 July 1993
Court    : High Court
Coram    : Amarjeet Singh JC
Counsel    : Nathan Isaac and Abdul Rohim Sarip (Nathan Isaac & Co) for the plaintiff; Defendant absent.

 


Tort – Negligence – Nervous shock – Mother observed slow and painful death of daughter arising from negligent operation carried out by surgeon – Mother developed post-traumatic stress disorder arising from grief and guilt at persuading daughter to undergo operation – Psychiatric illness did not come through sight or hearing of event but from grief and guilt – Whether surgeon owed duty of care in respect of mother's psychiatric illness – Factors to be established


 


Facts


The plaintiff was the mother of the deceased, a 22-year-old woman. The daughter had been advised by the defendant, a neurosurgeon, that she had a tumour between her eyes, and had to undergo an operation immediately to avoid either going blind or dying. The mother persuaded her reluctant daughter to submit to the operation and gave the go-ahead to the defendant. During the operation, the defendant removed perfectly healthy tissue, and in the process caused a tear in one of the membranes covering the patient's brain. This was not detected and she began to leak essential brain fluid, and subsequently developed meningitis. Throughout the ordeal the defendant had refused to visit the patient and had admonished the plaintiff for contacting him at night.


The plaintiff subsequently engaged two consultant neurologists to remedy her daughter's condition, and from them discovered that the defendant had been negligent and the operation was never necessary, the leakage could have been repaired had immediate steps been taken, and the infection could have been avoided with antibiotics. The patient died after much pain and suffering, which was witnessed by the plaintiff, who blamed herself constantly for having persuaded her daughter to undergo surgery.


The plaintiff's personality changed, she was on the verge of a breakdown and almost committed suicide. She was diagnosed to be suffering from post-traumatic stress disorder, pathological grief and a mood disorder, a depressive illness secondary to grief arising out of the circumstances surrounding the deceased's death. The defendant was found liable in negligence for the death of the deceased in a suit consolidated with the present one. In the present suit pertaining to the defendant's liability in respect of negligence for the plaintiff's psychiatric illness, the main issue was whether the defendant owed a duty of care to the plaintiff in respect of her psychiatric illness.


Held, allowing the claim:


(1)    Following Caparo Industries v Dickman [1990] 1 All ER 568, the requirements for establishing negligent liability for nervous shock were now threefold, first, the test of reasonable foreseeability must be satisfied, second, there must exist a relationship of proximity as between victim and tortfeasor, and third, the attachment of liability must be considered "just and reasonable": at [28] and [29].


(2)    In cases involving nervous shock, the requirement for "proximity of relationship" was established by the "three proximities", namely, the class of persons whose claims should be recognised, the proximity of such persons to the accident and the means by which the shock was caused. The three proximities were not considered merely as a matter of policy, but were the legal requirements that define the classes wherein recovery may be permitted, barring the additional considerations of justice and reasonableness. As legal requirements, the threshold for their fulfilment was thus a legal threshold, and the extension of liability would be on an incremental basis by analogy with established categories, rather than on general principles of reasonable foreseeability: at [25] and [33].


(3)    The evidence showed not only the relationship of mother and child between the plaintiff and the deceased but the existence of a very close bond between them. Hence the plaintiff fell clearly within the established class of persons whose claims had been recognised: at [41].


(4)    The plaintiff's continuous presence by the side of her dying daughter in the aftermath of the negligent operation and during the post-operative negligent treatment, the traumatic effects of which continued notwithstanding subsequent medical attention by other consultants, could be equiparated with the viewer being within sight and hearing of the event and its immediate aftermath. There was therefore sufficient proximity in time and space to the tortious event and a blending of the twin elements of foreseeability and proximity, to allow the plaintiff to come within the limits of the law to recover damages for her illness: at [44] and [55].


(5)    The requirement in McLoughlin v O'Brian [1983] 1 AC 410 that "the shock must come through sight or hearing of the event or of its immediate aftermath" could not mean that, merely because some of the negligent acts complained of were acts which could not reasonably be witnessed by a person, she immediately failed to establish foreseeability.In an abnormal event or abnormal case involving medical negligence, a doctor's negligent act could hardly ever be witnessed. What could be witnessed, however, and what was required to be witnessed, was the calamitous effect of that conduct on the primary victim. The resulting trauma and psychiatric injury arising in these cases in a plaintiff was nearly always from a close, constant and unremitting perception of the suffering, distress and pain of the primary victim where death was not immediate - the perception directly inflicting emotional and mental stress as a result of the callous and negligent attitude of the medical professional - and as such ought to be recognised as a logical, analogous and necessary step forward in recovery of a plaintiff's claim: at [46] and [56].


(6)    The plaintiff's claim also succeeded on the alternative view that the defendant had through his negligence put the plaintiff in the position of thinking that she had been responsible for her daughter's death. In establishing this alternative ground it was necessary to prove the primary requirements of reasonable foreseeability and relationship of proximity, but the requirement of the three proximities was modified somewhat to reflect the situation envisaged. Hence the class of persons who may recover may not merely be limited by the ties of love and affection, but may carry the additional requirement that the defendant through his negligence had put the plaintiff in a position of being morbidly pre-occupied with the thought that he or she had been responsible for the injury resulting to the primary victim. As for the final requirement of the means by which the shock was inflicted, the shock may result not merely from a direct perception through sight or hearing of the accident or its immediate aftermath, but included concomitantly the sudden and horrifying realisation, which one would expect a reasonable person in the position of the plaintiff to have, that he or she was responsible for the damage or injury caused: at [66] and [71].


(7)    The above applied only in medical negligence cases, and if, and only if, it could be proven that the plaintiff had suffered a recognisable psychiatric illness through convincing medical evidence and that the plaintiff had been a percipient witness of the negligence of the defendant and the dire consequences the negligence wrought on the primary victim: at [75] and [76].


[Observation: While decisions in the US were in no way binding nor ordinarily applicable in Singapore, this could not and should not preclude the courts from looking at judicial decisions in the US, which offered a far more diverse and broader base of situations upon which legal developments may be founded. The cautionary principles to bear in mind were that the law may have developed in directions vastly different from those in the Commonwealth, so such cases must be viewed with much more circumspection: at [47].]


Case(s) referred to


Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310; [1991] 4 All ER 907 (folld)


Anns v Merton London Borough Council [1978] AC 728; [1977] 2 All ER 492 (refd)


Attia v British Gas plc [1988] QB 304; [1987] 3 All ER 455 (refd)


Brice v Brown [1984] 1 All ER 997 (refd)


Caparo Industries plc v Dickman [1990] 2 AC 605; [1990] 1 All ER 568 (folld)


Dillon v Legg [1968] 68 Cal 2d 728; 69 Cal Rptr 72; 441 P 2d 912 (folld)


Dooley v Cammell Laird & Co, and Mersey Insulation Co, Ltd [1951] 1 Lloyd's Rep 271 (refd)


Galt v British Railways Board (1983) 133 NLJ 870 (refd)


Gloria Ochoa et al v The Superior Court of Santa Clara County 39 Cal 3d 159; 216 Cal Rptr 661; 703 P 2d 1 (folld)


Hevican v Ruane [1991] 1 WLR 221; [1991] 3 All ER 65 (refd)


Home Office v Dorset Yacht Co Ltd [1970] AC 1004; [1970] 2 All ER 294 (refd)


Jaensch v Coffey (1984) 54 ALR 417 (refd)


M'Alister (or Donoghue) (Pauper) v Stevenson [1932] AC 562 (refd)


McLoughlin v O'Brian [1983] 1 AC 410; [1982] 2 All ER 298 (folld)


Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73, HC (refd)


Ravenscroft v Rederiaktiebølaget Transatlantic [1992] 2 All ER 470, CA (refd)


Sutherland Shire Council v Heyman (1985) 60 ALR 1 (refd)


Thing v La Chusa (1989) 771 P 2d 814 (refd)


Wigg v British Railways Board (1986) 136 NLJ 446 (refd)


 


2 July 1993


 



Amarjeet Singh JC:


Introduction


1       This case presents a rare and unique opportunity to review the law relating to liability for shock-induced psychiatric illness suffered as a result of negligent acts. In this case, the plaintiff sued the defendant, a neurosurgeon, on the basis that his negligence, which resulted in the death of her daughter, caused the plaintiff to suffer a psychiatric illness which persists even today. In Suit No 791 of 1987, consolidated with the present suit, I had found the defendant liable in negligence for the death of Miss Chong Yun Jing, aged 22. His negligence having been established, I turned to consider his liability in respect of the plaintiff. At the end of the trial, I found him liable in negligence for the plaintiff's psychiatric illness and awarded damages accordingly. I now give my reasons.


2       As a preliminary I should like to point out that the defendant did not appear at the trial. His solicitors had applied for and obtained a discharge shortly before the hearing and an adjournment was sought at the trial by their replacement which I refused. No grounds were furnished to explain the defendant's absence nor were satisfactory grounds furnished for the application for adjournment. When I denied the adjournment, the replacement solicitor withdrew as well. On my direction, the plaintiffs proceeded to prove their claim in the normal manner by calling all the relevant witnesses including specialist evidence. Due care has therefore been taken for the absence of the defendant. There was an appeal lodged against my decision, but it has since been discontinued.


The facts


3       Briefly, the facts relating to the death of the plaintiff's daughter are as follows. She had been the plaintiff's only daughter, and according to Chong Yuen Ching, PW6, the plaintiff's only son, she was the plaintiff's sole confidante with whom she shared all her worries. The deceased worked in the family's two companies, at the same time studying part-time at the Singapore Polytechnic. At the time of her death, she was in the final year of the diploma course for production engineering technicians.


4       Sometime in March 1985, the deceased had a fainting spell. She visited her family doctor, Tham Pak On ("Dr Tham") and was recommended to consult the defendant, a neurosurgeon practising under the name and style of Lim Neurosurgery at Mount Elizabeth Medical Centre. The deceased was then perfectly healthy, exhibited no signs of any illness in her brain, and save her single fainting spell, had no other medical problems.


5       The defendant had skull x-rays, EEG, CAT-scan and blood tests conducted on the deceased after which he told the plaintiff and the deceased that she had a tumour between her eyes. He told the plaintiff that the deceased had to undergo an operation immediately otherwise she would die or go blind. The plaintiff was gravely concerned at this news and having persuaded her reluctant daughter to submit to the operation, gave the go-ahead to the defendant. As a result, a transphenoidal operation (through the nose) was performed on the deceased on 6 June 1985 for the removal of what purported to be a microadenoma - a small tumour - of the pituitary gland.


6       As it turned out, the defendant had removed perfectly healthy tissue, and in the process had caused a tear in the deceased's arachnoid membrane, one of the three meninges covering the brain. This was not detected and the deceased began to leak cerebro-spinal fluid (CSF) - essential brain fluid - through her nose. She developed meningitis - an inflammation of the meninges - and eventually died on 10 September after much pain and suffering, of meningitis and its concomitant complications.


The plaintiff's psychiatric illness


7       The plaintiff's psychiatric illness arose from the trauma of being at her daughter's bedside throughout her suffering and the shock of her daughter's death. According to her psychiatrist, Dr Lim Hsin Loh ("Dr Lim"), the plaintiff felt very guilty about the operation and felt responsible for it. The sequence of events which contributed to the shock she experienced at her daughter's death were as follows.


8       The first time the plaintiff saw her daughter after the operation was when she was in intensive care. She could not open her right eye. A nose pad covered the nasal dissection. The next day she was moved into a ward and the plaintiff was told to get a private nurse. She hired two nurses on 12-hour shifts. A few days later, the nose pad was removed. The deceased started dripping from the nose. She complained of blurred vision and had a high fever. She drank a lot [of] water and urinated frequently. She also complained of pain and severe headache. Painkillers were prescribed for her. All this time, the plaintiff was at her daughter's bedside taking care of her, and hence she observed her daughter's pain and suffering. On 10 June, four days after the operation, the plaintiff found that her daughter had become confused and irrational.


9       The deceased's poor post-operative condition continued from 10 June to 24 June. The plaintiff began to have serious doubts about the operation. On 24 June, despite the fact that the plaintiff had not asked for her discharge, and despite the poor condition of the deceased, the defendant discharged the deceased from the hospital. She was brought home in an ambulance, with a intravenous drip still set in her. The plaintiff was very upset at this.


10     At home, the deceased continued complaining of headaches. She still dripped from her nose and her condition remained poor. The plaintiff called the defendant several times to ask for advice, as did the private nurses still caring for the deceased, as well as the deceased herself. The defendant refused to visit her and even admonished the plaintiff for calling him at night. This aroused great indignation in the plaintiff.


11     Two days later, on the advice of the private nurses, the deceased was re-admitted. The defendant was informed and paged by the matron but he did not respond until the evening of her re-admission. In the meantime the plaintiff made her own efforts to find another doctor. The next day, the plaintiff told the defendant in desperation that she wanted a change of doctors as he was not treating the deceased. For a short while, Dr H I Tong, a consultant neurologist, treated the deceased. The plaintiff then found Dr James Khoo, PW2, ("Dr Khoo"), also a consultant neurologist, and, with difficulty, managed to persuade him to take over the care of her daughter.


12     When Dr Khoo took over the management and care of the plaintiff's daughter, he found her very ill. From her discussions with Dr Khoo and other doctors enlisted to care for her daughter, the plaintiff discovered that the defendant had been negligent and the operation had never been necessary and further that the fluid dripping out of her daughter's brain was essential brain fluid. Dr John Thambyah, PW3, a consultant physician and a specialist in endocrinology, testified that the leakage could have been repaired had immediate steps been taken and with the help of antibiotics, the infection would have been avoided. As it turned out, the plaintiff had to sit through two additional operations by Dr Ong Peck Leng, head of neurosurgery at the Tan Tock Seng Hospital, in which he had attempted to repair the damage caused by the defendant. Throughout the operations, she blamed herself constantly for having allowed and even persuaded her daughter to submit to the defendant's operation in the first place. All this while, she still had hopes for her daughter's recovery.


13     When her daughter died, the plaintiff was distraught. The plaintiff had watched her in severe pain and agony and upon her death, she was on the verge of a breakdown and almost committed suicide. In September 1985 she complained to Dr E A Heaslett of palpitations of the heart, breathlessness, insomnia, episodes of crying, loss of interest in her work and social life and pre-occupation with memories of her daughter. He treated her for a severe depression until January 1988. Her family observed that she had undergone a personality change. Her relationship with her son and husband were strained. She was constantly preoccupied with her daughter's death and preserved her daughter's desk at the office as well as her room at home.


14     Her son, PW6, testified that the plaintiff had undergone a personality change after the death of his sister. She stopped cooking for the family and became overprotective of him, she reacted badly when she saw other families going out in groups, and she quarrelled frequently with her husband. Prior to her daughter's death, they had not quarrelled as much. She also went to Dr Tham's office and abused him, smashing some glass and banging some cupboards although she had ordinarily been a mild lady.


15     The plaintiff's psychiatrist, Dr Lim, testified that she consulted him from January 1988 and another psychiatrist very briefly. He continued the treatment. He saw her often, sometimes every fortnight, sometimes monthly, sometimes after long periods in the last five years. She related to Dr Lim a history of how her daughter had been hospitalised and then succumbed to her injuries, and how she had been at her daughter's bedside throughout and the traumatic effect the entire experience had on her.


16     Dr Lim diagnosed her to be suffering from post-traumatic stress disorder and pathological grief. Dr Lim was of the opinion that the plaintiff suffered from a mood disorder, a depressive illness secondary to grief arising out of the circumstances surrounding her daughter's death, in particular, whether her daughter had a brain tumour and whether the operation had been necessary. Her tendency to preserve her daughter's room at home and desk in the office was known as "mummification" and was a symptom of a severe grief reaction. Dr Lim was of the opinion that the plaintiff had become a psychiatric patient. He also referred to medical reports of the other doctors.


The law on nervous shock - the duty of care


17     Counsel for the plaintiff submitted substantially on the authority of McLoughlin v O'Brian [1983] 1 AC 410; [1982] 2 All ER 298. In that case, a car driven by the plaintiff's husband and carrying three of her children was involved in a serious road accident which had been caused by the negligence of the defendant. The plaintiff was informed of the accident two hours later and rushed to the hospital where she saw two of her children and her husband in pain and shock, bleeding from their injuries, and covered with dirt and grease from the accident. She heard her son screaming in pain. She was also told that her youngest daughter had died. As a result of what she had seen and heard at the hospital, the plaintiff suffered severe shock, organic depression and a change of personality for which she sued the defendant.


18     The Court of Appeal rejected the plaintiff's claim largely on the basis that policy considerations precluded the extension of liability to someone in the position of the plaintiff. The House of Lords unanimously overturned that decision. Their Lordships were of the opinion that since the damage suffered by the plaintiff was reasonably foreseeable, she ought to be allowed to recover damages for her injuries. Policy considerations required that liability in such claims be carefully delineated, so their Lordships, in separate opinions, set out what they considered to be the primary considerations before recovery could be allowed. The key speech is that of Lord Wilberforce in which he outlined what has since been considered as "the three proximities". I shall return to these later.


19     This positive attitude towards recovery for nervous shock was sustained and upheld in Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907, the latest and by far the most important pronouncement since McLoughlin on the question of liability for nervous shock which counsel failed to bring to the court's attention.


20     This case involved the tragedy at Hillsborough Stadium in Sheffield in 1989 where, on the day of an FA Cup semi-final between Liverpool and Nottingham Forest, the South Yorkshire police force negligently allowed far too many spectators to enter the grounds of the stadium at Leppings Lane end, causing a massive crush of human bodies, and resulting in the deaths of 95 people and injuries to over 400 others. Scenes from the ground were broadcast live on television from time to time during the course of the disaster all over England. Those who tuned in to see the match in Singapore live by satellite transmission will remember the appalling tragedy unfolding in their living rooms. Recordings were broadcast later. In the case of 13 of the plaintiffs, their relatives and friends were killed; in the case of two plaintiffs, their relatives and friends were injured; and in the case of one plaintiff, the relative escaped unhurt. They brought actions against the Chief Constable of South Yorkshire claiming damages for nervous shock resulting in psychiatric illnesses which were alleged to have been caused by the experiences inflicted upon them by the disaster. Whilst admitting liability in negligence in respect of those who were killed or injured, the Chief Constable denied that he owed any duty of care to the plaintiffs.


21     The House of Lords took the opportunity to review and restate the position on liability for nervous shock. The decision in Alcock was subsequently followed in the Court of Appeal in Ravenscroft v Rederiaktiebølaget Transatlantic [1992] 2 All ER 470n where the court in considering the remarks that had been made in Alcock ([19] supra) doubted the decision in Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73 and allowed the defendant's appeal and denied plaintiffs leave to appeal to the House of Lords.


22     The courts in Singapore are not strictly bound by decisions of the English courts in the sense that the courts in England are not part of the hierarchy of courts in Singapore, this being especially true since legislative amendments have limited appeals to the Judicial Committee of the Privy Council; nonetheless, in respect of decisions in common law, particularly in the area of tort in general and negligence in particular, decisions of the highest court in England should be highly persuasive if not practically binding. As such, full regard must be had to the position in the law as a result of Alcock.


23     Their Lordships in Alcock ([19] supra) were unanimous in recognising that the law had developed so far as to recognise that liability could arise where a tortfeasor causes a recognisable psychiatric illness in a party who suffers shock as a result of witnessing, in some way or other, the infliction of physical injury, or the risk of physical injury upon another person. Although four separate opinions were set out, Lord Lowry having decided to refrain from adding further observations of his own, their Lordships shared a common view as to the elements that needed to be proved before a party could succeed on a claim in nervous shock. In essence, their Lordships adopted the three proximities propounded by Lord Wilberforce in McLoughlin ([17] supra). However, because the approach taken in Alcock to the proximities was different from that taken by Lord Wilberforce, it is useful to review the English position on the approach to establishing the existence and scope of liability in negligence, with particular reference to the manner in which liability in nervous shock has been developed.


Developments in the law from Anns to Caparo


24     In McLoughlin ([17] supra), recognised to be the seminal case on nervous shock before Alcock, Lord Wilberforce applied his own dictum in Anns v Merton London Borough Council [1977] 2 All ER 492 at 498 in which case earlier he established the two-stage test in determining liability, viz:


... First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages to which a breach of it may give rise.


25     Lord Wilberforce went on to establish that nervous shock could be a reasonably foreseeable consequence of a tortfeasor's actions. Next, in considering the policy requirements which "ought to negative, or reduce or limit the scope of the duty or the class of persons to whom it is owed", Lord Wilberforce stated in McLoughlin ([17] supra), at 304e-304g:


... there remains, in my opinion, just because 'shock' in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation on the extent of admissible claims. It is necessary to consider three elements inherent in any claim; the class of persons whose claims should be recognized; the proximity of such persons to the accident; and the means by which the shock is caused. ... [emphasis added]


26     These three proximities were for some time the touchstone upon which recovery for nervous shock was established in subsequent cases. The point to note is that Lord Wilberforce had expressed them as policy considerations in the second stage of the Anns two-stage test. As such, the approach adopted was flexible and open-ended, and the extension of the classes of persons and situations in which recovery was allowed would be by a consideration of vague and general principles of policy rather than strict requirements in law.


27     In 1990, the test by which the existence and scope of new areas of liability in negligence was restated in Caparo Industries plc v Dickman [1990] 1 All ER 568 where their Lordships adopted the dictum of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1 (at 43):


... It is preferable in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed.


28     The position taken in Caparo can be taken as stated by Lord Oliver at 585e-585f, where he said:


... Thus the postulate of a simple duty to avoid any harm that is, with hindsight, reasonably capable of being foreseen becomes untenable without the imposition of some intelligible limits to keep the law of negligence within the bounds of common sense and practicality. Those limits may have been found by the requirement of what has been called a 'relationship of proximity' between the plaintiff and the defendant and by the imposition of a further requirement that the attachment of liability for harm which has occurred be 'just and reasonable'.


29     So the requirements are now three-fold, first, the test of reasonable foreseeability must be satisfied, second, there must exist a relationship of proximity as between victim and tortfeasor, and third, the attachment of liability must be considered "just and reasonable".


30     The purpose of recounting these developments in the law is so that the view of the three proximities as stated in McLoughlin ([17] supra) which was adopted in Alcock ([19] supra) may be seen in its proper perspective. As stated before, the three proximities were considered in McLoughlin purely as policy considerations. As considerations of policy, these three proximities were not strict legal requirements so that the general attitude to the extension of the areas in which recovery was allowed for nervous shock was arguably more lax. Illustration may be found in two cases, Attia v British Gas plc [1987] 3 All ER 455 and Hevican v Ruane [1991] 3 All ER 65.


31     In Attia, the Court of Appeal held that damages were recoverable where the plaintiff had suffered a recognisable psychiatric illness as a result of watching her home and its contents being destroyed by a fire which had been caused through the negligence of the defendants. Nervous shock could therefore apply not only to cases of personal injury but also to cases of property damage. In Attia, the problem with extending the existing law that far lay only in the question of policy considerations. Having determined that such damage was reasonably foreseeable, Dillon LJ considered that there was no problem with proximity in that case because the plaintiff was not a secondary victim of the negligence but a primary victim, since it was her property that had been damaged. Woolf and Bingham LJJ merely stated that the requirement of reasonable foreseeability had been met and no policy reasons existed to deny recovery. Attia was not considered in Alcock, but it is not unreasonable to think that their Lordships would probably have doubted the possibility of extending liability for nervous shock that far.


32     In Hevican, recovery was allowed where the plaintiff had not only not observed the accident causing the death of his son, he had not even been present at its "immediate aftermath" within the meaning as applied in McLoughlin in that he had only seen his son's body in the mortuary some three hours after the accident. The son's body showed no signs of disfigurement. The psychiatric illness caused was a result of the news of his son's death, the sight of the body and a continuing sense of loss. Hevican was considered after the judgment in Caparo ([27] supra) had been delivered but, with respect, I doubt if proper effect had been given to the changes wrought in Caparo. Instead, Mantell J considered proximity in its physical and causal senses. On the basis of M'Alister (or Donoghue) (Pauper) v Stevenson [1932] AC 562, he rejected the requirement of physical proximity, while on the basis of Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, he considered that the requirement of causal proximity had been met. He then considered the requirement of a "relationship of proximity" in the sense of reasonable foreseeability, thus confusing the first two requirements in the Caparo three-stage test. Mantell J then considered that as there were no policy considerations negativing the existence of a duty, the plaintiff was entitled to recovery. Hevican thus extended the range of situations in which there could be recovery for nervous shock to instances where the news of a tragic event had been communicated by a third party. For this reason it was doubted by all their Lordships in Alcock as not meeting the requirement of physical proximity to the accident.


33     Since Caparo had changed the means by which new categories of negligence were established, their Lordships in Alcock ([19] supra) approached the question of liability in nervous shock on the basis of the three-stage test. Reasonable foreseeability was rejected as the sole criterion in establishing liability. All their Lordships expressed their concern that it was an insufficient requirement, particularly since the injury considered is, as stated by Lord Keith (at 913j) "more subtle" and a "secondary sort of injury", and as Lord Jauncey states (at 933e) "different considerations apply because of the wide range of people who may be affected". The additional consideration applied by their Lordships was that of the "relationship of proximity" according to the three proximities applied by Lord Wilberforce in McLoughlin, but unlike Lord Wilberforce, their application of the three proximities was not a consideration of policy which limits the classes of cases where liability may be established. Instead, their considerations of the three proximities were as a means of conditioning the duty of care, a further limitation to the existence and scope of the duty. In other words, instead of considering the proximities as limitations to the classes where as a matter of policy, recovery may be permitted, the proximities were legal requirements defining the classes wherein recovery may be permitted, barring the additional considerations of justice and reasonableness. As legal requirements, the threshold for their fulfilment is thus a legal threshold, and the extension of liability would be on an incremental basis by analogy with established categories, rather than on general principles of reasonable foreseeability. The parameters of the scope of the duty to avoid inflicting nervous shock had thus been redefined.


34     In a sense the conservative and categorised approach taken in Alcock is not peculiar to English jurisprudence. The development of the law relating to what is commonly referred to in the US as "negligently inflicted emotional distress" (NIED), which is the equivalent of nervous shock in English common law, appears to parallel that in England. It began with the Californian decision in Dillon v Legg [1968] 68 Cal 2d 728; 69 Cal Rptr 72; 441 P 2d 912 which was influential in McLoughlin's case, where it was held that a parent who witnesses the negligent infliction of death or injury on his or her child may recover from the resulting emotional trauma and physical injury in cases where the parent does not fear imminent physical harm. Following from that, a series of Californian decisions appeared to extend the principles of NIED further and further until, in Thing v La Chusa (1989) 771 P 2d 814, the Supreme Court of California shed its adventurism and circumscribed the situations in which recovery for damages could be made in such cases by requiring a close relationship by the plaintiff to the injured victim and requiring that the emotional distress suffered by the plaintiff be beyond that anticipated in a disinterested witness.


The three proximities


35     I now turn to the test established in English law for the determination of liability in respect of nervous shock cases. In McLoughlin ([17] supra), Lord Wilberforce elaborated upon his "three proximities" in these terms (at 304f):


As regards the class of persons, the possible range is between the closest of family ties, of parent and child, or husband and wife, and the ordinary bystander. Existing law recognizes the claims of the first; it denies that of the second, either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life or that the defendants cannot be expected to compensate the world at large. In my opinion, these positions are justifiable, and since the present case falls within the first class it is strictly unnecessary to say more. I think, however, that it should follow that other cases involving less close relationships must be very carefully scrutinized. I cannot say that they should never be admitted. The closer the tie (not merely in any relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of other factors, such as proximity to the scene in time and place, and the nature of the accident.


As regards proximity to the accident, it is obvious that this must be close in both time and space. It is after all, the fact and consequence of the defendant's negligence that must be proved to have caused the 'nervous shock'. Experience has shown that to insist on direct and immediate sight or hearing would be impractical and unjust and that under what may be called the 'aftermath' doctrine, one who, from close proximity comes very soon on the scene, should not be excluded. In my opinion, the result in Benson v Lee [1972] VR 879 was correct and indeed inescapable. It was based, soundly, on 'direct perception of some of the events which go to make up the accident as an entire event, and this includes ... the immediate aftermath'. The High Court of Australia's majority decision in Chester v Waverley Municipal Council (1939) 62 CLR 1, where a child's body was found floating in a trench after a prolonged search, may perhaps be placed on the other side of a recognizable line ... but, in addition, I find the conclusion of Lush J in Benson v Lee to reflect developments in the law.


Finally, and by way of reinforcement of 'aftermath' cases, I would accept, by analogy with 'rescue' situations, that a person of whom it could be said that one could expect nothing else than that he or she would come immediately to the scene (normally a parent or a spouse) could be regarded as being within the scope of foresight and duty. Where there is not immediate presence, account must be taken of the possibility of alterations in the circumstances for which the defendant should not be responsible.


Subject to these qualifications, I think that a strict test of proximity by sight or hearing should be applied by the courts.


Lastly, as regards communication, there is no case in which the law has compensated shock brought about by communication by a third party. In Hambrook v Stokes Bros [1925] 1 KB 141, [1924] All ER 110, indeed, it was said that liability would not arise in such a case, and this is surely right. It was so decided in Abramzik v Brenner (1967) 65 DLR (2d) 651. The shock must come through sight or hearing of the event or of its immediate aftermath. Whether some equivalent of sight or hearing, eg through simultaneous television, would suffice may have to be considered.


[emphasis added]


36     Thus their Lordships held in McLoughlin that the plaintiff in arriving so soon upon the immediate aftermath of the accident and having witnessed and been overcome by her family's injuries and conditions beyond grief and sorrow, had established her proximity to the traumatic events and thus fell within the scope and duty of a defendant to avoid causing nervous shock.


37     The exposition of the principles in Alcock ([19] supra) are set out in the headnote (at 908c-908h of the All ER report) and may conveniently be referred to here:


A person who sustained nervous shock which caused psychiatric illness as a result of apprehending the infliction of injury or the risk thereof to another person could only recover damages from the person whose negligent act caused the physical injury or risk to the primary victim if he satisfied both the test of reasonable foreseeability that he would be affected by psychiatric illness as a result of the consequences of the accident because of his close relationship of love and affection with the primary victim and the test of proximity in relationship to the tortfeasor in terms of physical and temporal connection between the plaintiff and the accident. Accordingly, the plaintiff could only recover if (i) his relationship to the primary victim was sufficiently close that it was reasonably foreseeable that he might sustain nervous shock if he apprehended that the primary victim had been or might be injured, (ii) his proximity to the accident in which the primary victim was involved or its immediate aftermath was sufficiently close both in time and space and (iii) he suffered nervous shock through seeing or hearing the accident or its immediate aftermath. Conversely, persons who suffered psychiatric illness not caused by sudden nervous shock through seeing or hearing the accident or its immediate aftermath or who suffered nervous shock caused by being informed of the accident by a third party did not satisfy the tests of reasonable foreseeability and proximity to enable them to recover ... [emphasis added]


38     The plaintiffs in Alcock were unable to succeed in their claims because they had failed to meet requirements (ii) and (iii). It was held that the perception of the tragedy at Hillsborough through the medium of the television, particularly when television broadcasting guidelines forbade the depiction of suffering by recognisable victims, as well as the communication of the news by third parties to some of the plaintiffs indicated that the plaintiffs had not been in sufficient proximity either in time or in space to the events and would not have suffered shock in the sense of a sudden assault on the nervous system.


The defendant's liability


39     It has been seen that the foreseeable risk may either involve the plaintiff suing to recover from nervous shock who is within the same zone of danger as the primary victim or in a situation where such a plaintiff is outside the zone of danger of physical risk but mental (or physical) infirmity is brought on by emotional disturbance resulting from a defendant's conduct. In the appropriate latter case, a plaintiff is considered to be as much in a zone of risk as a result of his responses. The question then is whether the plaintiff under the latter category as in this case meets the necessary criterion for determining the question of foreseeability in relation to her claim for damages for her psychiatric illness. Whether the defendant owes a duty to the plaintiff as a result of his negligent conduct is the foreseeability of the risk of his conduct affecting the plaintiff. The factors for the determination thereof will now be examined and evaluated.


The requirement of a close relationship


40     The first requirement is the closeness of the relationship between the person who brings the claim to that of the primary victim. In Alcock ([19] supra), it was held per curiam that the class of persons whose claims could be recognised was not limited to the narrow range of relationships such as husband/wife or parent/child. It is required, however, that the relationship must be within the defendant's contemplation. The reason for allowing recovery more readily in respect of persons within the parent/spouse category is the presumption, albeit a rebuttable one, of the existence of ties of love and affection between the parties and fear for the safety for a child or spouse and the natural inclination to protect them from danger or continuing danger to their lives. It can and should be reasonably foreseen by the tortfeasor that his actions would be likely to cause nervous shock to the parent or spouse of ordinary constitution who witnesses a gravely traumatic event or is traumatically enmeshed by its "aftermath".


41     There is no problem with meeting this requirement in this case. The evidence shows not only the relationship of mother and child between the plaintiff and the deceased but the existence of a very close bond between them. Hence the plaintiff falls clearly within the established class of persons whose claims have been recognised.


Proximity to the tortious event


42     The second requirement to be considered is whether the plaintiff was proximate both in time and space to the tortious event complained of by analogy to existing cases and in the light of the particular facts of this case. Here there was no accident which could have been witnessed by the plaintiff in the sense that she could have seen the physical injuries as they were being inflicted upon her daughter. The case has therefore to be viewed in a slightly different light. The situation, though, is somewhat analogous to instances such as in McLoughlin or Jaensch v Coffey (1984) 54 ALR 417, where the plaintiffs came upon the immediate aftermath of the accident and witnessed the state in which the primary victim was in as a result of the defendant's negligence.


43     In this case, the plaintiff was consulting as parent and was personally advised by the defendant of his diagnosis of the deceased at his clinic at the Mount Elizabeth Medical Centre. She had taken his advice and had asked her daughter to proceed with the operation as recommended and she was again at her daughter's bedside in the intensive ward of Mount Elizabeth Hospital immediately after the operation. She was with her daughter when she was negligently discharged by the defendant and sent home by ambulance whilst still in a poor condition and again by her bedside at home with two nurses tending to her. She brought the daughter back to the hospital as her condition grew precarious and after the defendant had ignored her requests to urgently make house calls and treat her daughter.


44     The answer to the question posed earlier as to whether the plaintiff was proximate both in time and space to the tortious event is that she was.


45     This question is however inextricably linked in this case to the third requirement in proximity, which is the means by which the shock is caused and I now turn to address that broader issue.


The means by which the shock is caused


46     The traditional view in relation to this requirement is most succinctly stated by Lord Wilberforce in the passage I have quoted from McLoughlin ([17] supra), viz that "the shock must come through sight or hearing of the event or of its immediate aftermath". It should be noted, however, that in all the previous cases in English common law relating to nervous shock, the negligence complained of has normally led to a particular event which occurred within a short space of time, usually a traffic or railway or other accident, or as in Alcock ([19] supra), a disaster which unfolded within the space of a few minutes. In these cases therefore, it has been possible and indeed logical, to have required the immediate sight or hearing of the horrific event in question. That, however, cannot mean that in this case, merely because some of the negligent acts complained of are acts which cannot reasonably be witnessed by a person in the plaintiff's position, she immediately fails the third requirement in establishing foreseeability and thus fails in her action. One would not expect any relative or spouse of a patient to be present during an operation. Neither would one expect that person to realise immediately whether or not a particular operation was being carried out negligently. Thus whilst the plaintiff was not immediately aware that the defendant had been negligent in his diagnosis and in his performance of the operation, she was witnessing throughout the effects of these and the subsequent negligent acts of the defendant.


47     Before I proceed further, however, it is necessary to digress to gain some insight from American jurisprudence which has been influential in shaping the common law on the subject. It is particularly useful to refer to these cases in the absence of such cases in English jurisprudence. I refer particularly to medical cases similar to the present where the plaintiffs have suffered "negligently inflicted emotional distress" (NIED, to which I have referred earlier) as a result of medical negligence. A word of caution should however be stressed. While decisions in the US are in no way binding nor ordinarily applicable in Singapore, this cannot and should not preclude the courts from looking at judicial decisions in the US, which offer a far more diverse and broader base of situations upon which legal developments may be founded. The cautionary principles to bear in mind are that the law may have developed in directions vastly different from those in the Commonwealth, so that cases must be viewed with much more circumspection.


48     In this particular instance, where I am considering the position relating to a claim against a medical specialist for the psychiatric illness he has negligently inflicted upon the plaintiff in the course of his specialist work, I find that reference to the Californian cases is not unjustified, particularly since the Californian position relating to NIED appears to reflect the English position. Dillon v Legg ([34] supra), the seminal case on NIED, states at 80-81:


Since the chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a case by case basis. We cannot now predetermine defendant's obligation in every situation by a fixed category; no immutable rule can establish the extent of that obligation for every circumstance of the future. We can, however, define guidelines which will aid in the resolution of such an issue as the instant one.


We note, first, that we deal here with a case in which the plaintiff suffered a shock which resulted in physical injury and we confine our ruling to that case. In determining, in such a case, whether defendant should reasonably foresee the injury to plaintiff, or in other terminology, whether defendant owes plaintiff a duty of care, the courts will take into account such factors as the following:


(1)    Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.


(2)    Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.


(3)    Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.


The evaluation of these factors will indicate the degree of the defendant's foreseeability: obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly the degree of foreseeability of the third person's injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction. All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends upon each case.


49     I have quoted at length from this judgment to show that the basis upon which recovery for NIED is allowed is similar if not exactly parallel with recovery for nervous shock in English common law. The "three proximities" outlined by Lord Wilberforce are paralleled in the three factors stated in Dillon. That being so, cases which have applied these factors in NIED situations are of persuasive value to this decision.


50     The decision to be looked at in particular is the case of Gloria Ochoa et al v The Superior Court of Santa Clara County 39 Cal 3d 159; 216 Cal Rptr 661; 703 P 2d 1, a decision of the Supreme Court of California. Thirteen-year-old Rudy Ochoa was admitted to the custody of the Santa Clara County juvenile hall. On 23 March 1981, he became ill with an apparent cold and went to the infirmary for care and treatment. His parents visited him on 24 March and saw that he was "extremely ill", holding his left side in an attempt to relieve severe pain. He told his parents that he was very sick and had been told that he had a "bug". Gloria Ochoa, the plaintiff, spoke with the juvenile hall authorities, expressing her concern as her son was not receiving the necessary treatment. At this time, she experienced extreme mental and emotional distress at seeing her son's illness and pain.


51     On 25 March, the boy was finally admitted to the juvenile hall infirmary with what was diagnosed as "bilateral pneumonia" and a fever of 105 degrees. The plaintiff visited her son and saw that he was very pale and looked dehydrated, his skin was clammy and sweaty and he appeared to be going into convulsions and hallucinating during most of her visit. She was "very distressed and concerned" and requested that she be allowed to take her sick child to see her own physician. She was told that he only had the flu and should remain in the infirmary. The boy repeatedly asked to be taken to see their private doctor and the plaintiff was told that she had to wait until the following morning to discuss the matter with her son's probation officer.


52     When she returned to her son's bed, he was complaining of excruciating pain under his left rib cage and his side was tender to the touch. She repeated her requests to the nurses but was instead told to leave. She refused to do so. While she was applying cold compresses to her son, she tried to roll him on the side but her son yelled and screamed, complaining of excruciating pain in his chest area. The doctor was called but no examination was made of the boy in the plaintiff's presence. Throughout, the boy was vomiting and unable to retain any fluids and was observed by infirmary personnel to be coughing up blood. The plaintiff was told to leave and never saw her son alive again. She testified that she had "experienced extreme mental and emotional distress" because of her son's condition and because it appeared that her child's medical needs were being ignored. The boy eventually died in the early morning of 26 March 1981.


53     The court held that the plaintiff was entitled to claim for negligent infliction of emotional distress since her shock and trauma stemmed from her "sensory perception of the defendant's conduct" and her loved one's injury, particularly as the defendants could clearly foresee Mrs Ochoa's traumatic reaction.


54     The detailed account of the facts in Gloria Ochoa's case ([50] supra) shows the close parallel between that case and the present one. The plaintiff here had been with her daughter from her first consultation with the defendant to her death. She had seen, in the closest possible proximity, the deterioration of her erstwhile healthy daughter to a sickly girl in great pain and distress. As in Ochoa's case, the plaintiff was a percipient witness of the appalling neglect and lack of care of the defendant for her daughter's well-being. Immediately after the operation in the intensive care ward she saw that the deceased could not open one of her eyes. She saw her daughter dripping fluid from her nose which she later found out to be essential brain-fluid (CSF). Four days after the operation, she (the daughter) became confused and irrational. Her post-operative condition had remained poor until some three weeks after the operation when she was discharged prematurely by the defendant and sent home in an ambulance with the intravenous drip still set in her. He had refused to take calls or visit the deceased at home. He had refused or neglected to visit the deceased upon her re-admission in the hospital until very much later in the evening and then only briefly. Her requests to the defendant to see her daughter were met with a brusque and negligent attitude which added to her mental and emotional distress. His conduct drove the plaintiff to search in desperation for medical attention from others. She then learned from the medical consultants she engaged that the operation had not been necessary at all and that healthy tissue had been removed from her daughter's brain. Thereafter she continued to be by her daughter's bedside while the daughter underwent further surgery and medication, and - more pain and suffering. Meningitis by now unarrestable and its complications quickly took their course and her daughter's life over the next ten weeks or so.


55     The plaintiff had witnessed much suffering by her daughter. She had observed the effects of the defendant's negligent diagnosis, negligent operation and observed his negligent post-operative treatment of her daughter. All this was, in my opinion, the cause of the plaintiff's severe depressive illness described by the plaintiff's psychiatrist Dr Lim as post-traumatic stress disorder and pathological grief. The plaintiff's continuous presence by the side of her dying daughter in the aftermath of the negligent operation and during the post-operative negligent treatment, the traumatic effects of which continued notwithstanding subsequent medical attention by other consultants can be equiparated with the viewer being within sight and hearing of the event and its immediate aftermath. There was therefore sufficient proximity in my opinion, in time and space to the tortious event and a blending of the twin elements of foreseeability and proximity, to allow the plaintiff to come within the limits of the law to recover damages for her illness.


56     The conclusion I have come to, as well as that in Gloria Ochoa's case ([50] supra), is an extension beyond the existing limits in recovery for the negligent infliction of psychiatric illness established in either Alcock or Dillon. The negligent failure in both cases, to properly diagnose the ailments and give proper medical treatment (the negligent operation being an additional factor in the present case) did not amount to a sudden accidental occurrence. That, however, to my mind ought not to preclude recovery. As I have already expressed in the case of an abnormal event or abnormal case involving medical negligence - unlike that of a car accident which may be seen or heard - a doctor's negligent act or acts such as a negligent diagnosis, a negligent operation or negligent prescription of medicine can hardly ever be witnessed. What can be witnessed, however, and what is required to be witnessed, is the calamitous effect of that conduct on the primary victim as has happened in both these cases. The resulting trauma and psychiatric injury arising in these cases in a plaintiff is nearly always from a close, constant and unremitting perception of the suffering, distress and pain of the primary victim where death is not immediate - the perception directly inflicting emotional and mental stress as a result of the callous and negligent attitude of the medical professional and as such ought to be recognised as a logical, analogous and necessary step forward in recovery of a plaintiff's claim. This case is different from the usual cases of nervous shock where there was a traffic accident causing the injury to the primary victim, but it is not so different as to compel the law to shut its eyes to a situation which so obviously needs redress.


57     The Supreme Court of California in Ochoa ([50] supra) was of the same view. Having reviewed the authorities which had restricted the recovery of damages for NIED, the court said:


Our review of other cases allowing a cause of action for emotional distress under Dillon leads us to the conclusion that the 'sudden occurrence' requirement is an unwarranted restriction on the Dillon guidelines. Such a restriction arbitrarily limits liability when there is a high degree of foreseeability of shock to the plaintiff and the shock flows from an abnormal event, and, as such, unduly frustrates the goal of compensation - the very purpose which the cause of action was meant to further.


58     I agree with the above observation. Here as in Ochoa's case, there was a high degree of foreseeability of shock to the plaintiff and that the shock flowed from the abnormal events being the serious negligent acts of the defendant.


59     I therefore adopt the principle in Ochoa which was approved in the subsequent case of Thing v La Chusa ([34] supra) to the extent that recovery of damages for what may most appropriately be called the negligent infliction of psychiatric illness would be permissible if the plaintiff has observed the defendant's conduct as well as the injury resulting therefrom and is aware at that time that the conduct is causing or is the cause of the injury.


60     In coming to this conclusion, I am not precluded by any statements against such a development of the law in any authorities that have come to my attention. Lord Ackner in Alcock ([19] supra) in referring to sudden shock said at 918b:


It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.


61     It will be appreciated that the dicta of Lord Ackner no doubt left open the inclusion of situations of psychiatric illness in the appropriate and abnormal case where the elements of suddenness may not be present as stated and where psychiatric illness assaults the nervous system, builds up and manifests itself over some short period of time as in Ochoa and in the instant case. Lord Ackner's dicta though would in my opinion exclude situations where psychiatric illness is caused to care-givers of the primary victims of negligence in ordinary cases, where the toll taken on them over a period of time of watching their close relatives suffer causes a nervous illness. This case, while appearing to be similar to those situations, is entirely different in that the psychiatric evidence and the facts as I have found, show that the trauma and the shock suffered by the plaintiff was not equivalent to that of a care-giver, but of a mother who suffered the consequences of the defendant's negligence, who has had to suffer the distress and trauma of watching helplessly as her daughter was negligently managed and cared for by the defendant, and who realised the true impact of the defendant's negligence only to have to witness and suffer the vain attempts to repair the damage that he had wrought.


62     Perilously close are also the situations in which the claim in nervous shock may be confused with a claim for grief, sorrow, deprivation and suffering which arises out of necessity for caring for those who may be near and dear who have suffered injury from a distressing event. This category of claim is clearly untenable. In distinguishing the present case from the ones relating to just grief and suffering, I must say that here the claim is not exclusively for the loss the plaintiff has suffered, nor the sense of loss she feels. Rather, I view it as a claim for the psychiatric illness she now suffers as a result of the trauma and shock she underwent when her daughter suffered and died from an operation negligently performed by the defendant and the defendants' other negligent acts - events of which she was a percipient witness in terms of the elements of immediacy, closeness of time and space, visual and aural perception. Hence in my view, the claim is successful as an incremental and analogous extension of existing cases.


63     This leads me finally to say a few words on causation. I have no doubt that the plaintiff's psychiatric illness is caused by the defendant's negligence. It was his negligent diagnosis that led her to believe that her daughter was close to death or blindness. It was his negligent advice that led her to persuade her reluctant daughter to submit to the operation. It was his negligence in operating on her daughter that caused her to suffer the complications from which she died. Hence the death which occasioned the shock in the plaintiff can be related directly to the defendant. The psychiatric illness has been documented and recognised by the plaintiff's psychiatrist, whose evidence I accept in toto. The plaintiff is therefore within the scope of the duty to avoid nervous shock. She should therefore be allowed to recover damages for her illness.


An alternative view


64     An alternative means by which the claim may succeed arises from the categorisation by Lord Oliver of Aylmerton in Alcock ([19] supra) of the circumstances under which a duty of care arises in nervous shock. He classifies the cases into:


... cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of the injury caused to others. (At p 923 paras a to b.) [emphasis added]


65     Into the latter category falls the usual cases of an accident which is witnessed by the plaintiff or where the immediate aftermath is witnessed by the plaintiff, viz Alcock, McLoughlin and the like cases discussed above. It is the first category which is of interest in this case.


66     Of the cases mentioned by Lord Oliver as falling within this first category are those which he described as cases where (at 923-924):


... the negligent act of the defendant has put the plaintiff in the position of being, or of thinking that he is about to be, or has been, the involuntary cause of another's death or injury and the illness complained of stems from the shock to the plaintiff of the consciousness of this supposed fact. The fact that the defendant's negligent conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the event establishes of itself a sufficiently proximate relationship between them and the principal question is whether, in the circumstances, injury of that type to the plaintiff was or was not reasonably foreseeable.


67     Here Lord Oliver cited three cases. In Dooley v Cammell Laird & Co, and Mersey Insulation Co, Ltd [1951] 1 Lloyd's Rep 271, the plaintiff was a crane operator who suffered nervous shock when the rope connecting a sling to the crane hooks snapped and caused the load to fall into the hold of a ship where his colleagues were working. His illness was caused by his shock from the sudden fear he felt that he had been the cause of death or injury to his fellow workmen. In Galt v British Railways Board (1983) 133 NLJ 870, a train driver was in the course of his employment when he rounded a bend and saw two men on the tracks not 30 yards away. He thought that they had been killed when the train passed. As a result he suffered pains and myocardial infarction. In Wigg v British Railways Board (1986) 136 NLJ 446, another train driver saw a passenger trying to get on the train and hanging on to the railings until he fell between the train and the platform. He stopped the train and went to comfort the man, thinking he was still alive. As a result he suffered psychiatric illness. In all three cases, the claims were successful in that the defendants had, through their negligence, been responsible for having put the plaintiffs in a position where they were put in the position of thinking that they had been responsible for the deaths or injuries caused. In the first two cases, there had not even been any death or injury resulting yet recovery was allowed.


68     In my opinion, the plaintiff's situation falls squarely within the cases contemplated. Through the defendant's negligence, she had caused her daughter to submit to an operation which had not been necessary such that a perfectly healthy gland was removed and her daughter was subjected to the unnecessary risk of infection from which she died. It was the realisation that the defendant had misdiagnosed her daughter's case which had caused the plaintiff to blame herself for the death of her daughter. I see no problems in remoteness since the state of mind of the plaintiff had been the direct result of the defendant's gross negligence.


69     In this instance, I think it is important to distinguish this case from Alcock, particularly in respect of Lord Oliver's analysis where he said, at 931a:


Grief, sorrow, deprivation and the necessity for caring for loved ones who have suffered injury or misfortune must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained without compensation. It would be inaccurate and hurtful to suggest that grief is made any less real or deprivation more tolerable by a more gradual realisation, but to extend liability to cover injury in such cases would be to extend the law in a direction for which there is no pressing policy need and in which there is no logical stopping point.


70     As I have emphasised, the claim here is neither for grief, sorrow, nor deprivation, but for the psychiatric illness wrought upon the plaintiff as a result of her having, on the basis of the defendant's negligence and his exhortations that the operation was necessary lest her daughter died or went blind, persuaded her daughter to undergo the operation from which she died. I am of the opinion that here, there is such a "pressing policy need" to allow recovery since the defendant, as a neurosurgeon and a medical practitioner knew full well the import of his advice, and the consequences it would bring; ought to have known that both the plaintiff and her daughter trusted him implicitly to do his best; yet had carried out his duties as a specialist in such a negligent manner and has taken no responsibility for his own acts; that as such he should reasonably expect that as a result of his actions, he would cause much suffering to the plaintiff who had brought the deceased for consultation with him and between both of whom (ie the plaintiff and the defendant) all subsequent communication passed regarding the medical care of the deceased, to the extent that he would reasonably have expected her to have suffered psychiatric illness as she has, and that he should suffer the consequences of his actions by paying her damages for the injury that he has caused her.


71     It should be noted that in stating this alternative view, I have not lost sight of the primary requirements for recovery as stated in Alcock ([19] supra). There must still be a need for the damage incurred to be reasonably foreseeable, and that there must be a sufficient relationship of proximity between the plaintiff and the tortfeasor. The difference in this alternative view lies in the fact that the requirement of the three proximities is modified somewhat to reflect the situation envisaged. Hence the class of persons who may recover may not merely be limited by the ties of love and affection, but carry the additional requirement that the defendant through his negligence has put the plaintiff in a position of being morbidly pre-occupied with the thought that he or she had been responsible for the injury resulting to the primary victim. As to the physical proximity, this requirement remains the same. As for the final requirement of the means by which the shock is inflicted on the nervous system and the element of suddenness in respect of which element my opinion as expressed earlier applies, the shock may result not merely from a direct perception through sight or hearing of the accident or its immediate aftermath, but includes concomitantly the sudden and horrifying realisation which one would expect a reasonable person in the position of the plaintiff to have, that he or she was responsible for the damage or injury caused.


Policy considerations


72     Whether the recovery of damages in this case is on the basis of an incremental and analogous extension of existing cases, or whether it is on the alternative view mentioned by Lord Oliver and developed earlier in this judgment, the final consideration to be made is in respect of the requirement of justice and reasonableness in the award of such damages.


73     The most common argument to be made against recovery in this case, which would have been made had the defendant been represented, is that there may be a danger of the opening of the floodgates to more litigation in this area. In dismissing such a contention, regard should be had to the speeches in McLoughlin ([17] supra), particularly Lord Wilberforce's opinion expressed at 304e that:


the scarcity of cases that have occurred in the past, and the modest sums recovered, give some indication that fears of a flood of litigation may be exaggerated, ... . If some increase does occur, that may only reveal the existence of a genuine social need; ...


74     Lord Edmund-Davies (at 307d-307e) was similarly unconvinced, particularly since the rejection of any claim on the basis of such arguments would involve, as he quoted "the denial of redress in meritorious cases".


75     There is therefore no "fear of floodgates" being opened and courts being deluged with a mass of cases of a similar sort since the task of meeting the legal requirements is onerous indeed. There is a need to prove that the plaintiff has suffered a recognisable psychiatric illness through convincing medical evidence. Apart from this, the causative burden is not easy to discharge.


76     Furthermore, I am reinforced in this opinion by the fact that the extension which has been made in this case must necessarily be confined to cases of medical negligence to the extent that has occurred in this case and in Ochoa ([50] supra) as approved in Thing v La Chusa ([34] supra). Lest this be taken as a precedent for more remote cases less deserving of attention, it should be stressed once again that the key difference is in the fact that the plaintiff has been a percipient witness of the negligence of the defendant and the dire consequences it wrought on her daughter.


77     I am of the opinion that in addition to these legal limits, there are no reasons in policy to preclude recovery in this case.


78     In the premises, I find that the plaintiff has proven her case to my satisfaction and should be allowed to recover damages for her psychiatric illness.


Damages


79     The original claim was for special damages of $12,095.30 as medical expenses incurred for the treatment of her depressive illness, $100,000 in general damages on the basis of the 16,500 pounds sterling allowed in Ravenscroft ([21] supra) and the 22,500 pounds sterling awarded in Brice v Brown [1984] 1 All ER 997, as well as $1,500 per year for a period of ten years as future medical expenses.


80     Taking into consideration all the facts of this case, the psychiatric opinion and the plaintiff's age (51), I awarded the following in damages:


(a)     general damages in the sum of $30,000;


(b)     special damages in the sum of $5,946 for medical and psychiatric consultation with interest at 6% from the date of writ to judgment;


(c)     $50 bi-monthly for five years being provision for future psychiatric consultation - a total of $1,500; and


(d)     costs to the plaintiff.


Headnoted by Arvin Lee.