21
CO-COUNSEL WRITTEN SUBMISSION
II. THE HOSPITAL IS LIABLE FOR THE TORT OF NEGLIGENCE IN CONNECTION WITH EMMA’S PSYCHIATRIC INJURY.
A. A duty of care is owed by the hospital towards Emma as she falls under the category of secondary victim.
In the landmark case of Alcock v. Chief Constable of South Yorkshire Police24, Lord Oliver sets out the distinction between primary and secondary victims, whereby primary victims are those who are involved either mediately or immediately as a participant and secondary victims being those who are passive and unwilling witness of injury caused to others.
In the present case, Emma falls under the category of secondary victim as she was not within the physical zone of danger but witnessed the horrific event that happened to Logan.
The requirements that need to be fulfilled by the secondary victim in order to successfully claim for psychiatric injury were laid down by the House of Lords in Alcock’s case, which are; 1) there must be a close tie of love and affection with the primary victim, 2) there must be proximity in time and space to the incident or its aftermath, 3) the injury was caused by the means of sight and hearing.
1) There is a close tie of love and affection with the primary victim
In Alcock, the Lordships agreed that the closeness of the tie must be proved in each case by the plaintiff, although there is a rebuttable presumption that proximity of
24 [1992] 1 AC 310
22
relationship exists in cases concerning spouses, parents or children. Distant relatives and friends are required to show that their relationship is so close and intimate that their love and affection for the victim is comparable to that of the normal spouse, parent or child. What matters more is the degree of closeness and not so much the nature of the relationship.
In the present case, Emma is considered to have close ties of love and affection with Logan since they are married. Despite the fact that she has been contemplating for a divorce, Emma did not have the heart to confront Logan as she is concerned that the discussion will affect his mental health. Furthermore, the act of Emma accompanying Logan to his medical appointments and her wanting to leave China early from the planned date in order to be there for Logan’s surgery showed that she truly does care for her husband’s well-being. Similarly, Logan wanting Emma to be there for him before the operation begins showed that there is still mutual love and affection between the two spouses, no matter the rough patches they might have gone through.
2) There is proximity in time and space to the incident and its immediate aftermath
Proximity in time and space here means that the plaintiff must not only be present at the scene of the shocking incident, but also during its “immediate aftermath”.
Immediate aftermath was established in the case of McLoughlin v O’Brian25, whereby upon hearing the news of her husband and children’s involvement in a crash an hour
25 [1982] 2 All ER
23
after the accident happened, the plaintiff immediately went to the hospital where she found them still covered in dirt and oil, suffering obvious pain and distress. The court held that one hour was sufficient to consider it an immediate aftermath as the situation she experienced was “distressing in the extreme and were capable of producing an effect going well beyond that of grief and sorrow”.
In the present case, Emma was at the scene of the incident where Logan was rushed out on a stretcher which swerved and due to the respondent’s negligence in failing to secure the bed railings, Logan subsequently fell from the stretcher, causing his stitches to split open and revealing his insides. Seeing such horrific incident happening to a beloved spouse right before her own eyes would have rendered any reasonable person to be traumatized.
3) The injury was caused by the means of sight and hearing
Proximity of perception is established when the psychiatric injury was a result of a direct sight and sound of the shocking event or its immediate aftermath.
In Alcock, His Lordship stated that to succeed in a claim for nervous shock, the witness must have been sufficiently proximate to the accident which means they must have been present at the scene of the accident. Hearing it on radio or seeing it on the television will not usually be enough.
24
In the High Court case of Jub’il bin Mohamed Taib Taral & Ors v Sunway Lagoon Sdn Bhd26, a husband and a wife was riding on a train in an entertainment park when the wife flung out of the ride and landed on the ground. The husband seeing his wife’s body on the ground below him, her head smashed on the ground, with all the blood surrounding her, had traumatized him to the point that a psychiatrist had diagnosed him with chronic Post-Traumatic Stress Disorder (PTSD) for six months after the accident.
Similarly, in the present case, Emma witnessed the horrifying sight of her husband’s insides with her own two eyes. She did not hear about the incident from a third party nor did she see it in the television. Moreover, the fact that she has medical evidence of her psychiatric injury shows that the incident did not just cause her to suffer mere shock or depression.
Therefore, Emma has satisfied all the requirements needed in order for her to successfully claim as a secondary victim to the incident and that the hospital’s liability can be extended to her.
B. Emma has suffered a recognised psychiatric injury due to the shocking event
Shock is as described by Lord Ackner in Alcock which is ‘the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind.’
26 [2001] 6 MLJ 669
25
In the High Court case of Thiruvannamali a/l Alagirisami Pillai v Diners Club (M) Sdn Bhd27, the plaintiff failed to sue the defendant for shock, fear, and mental anguish as ordinary emotions do not count as psychiatric illness. There must be a medically recognized psychiatric injury for the claim to be successful.
In the present case, Emma has provided medical evidence that she suffered from psychiatric injury as a result of the viewing. Although it was not stated clearly in the facts what kind of specific illness she was diagnosed with, it can be assumed that it is one that is more than a mere shock or grief as she has been presented with the medical evidence by the doctor. Furthermore, the way in which her husband was thrown off his bed with such a force that his surgical stitches split opening, exposing his insides, adding to that state of shock and sudden rise of fear which caused her to scream and immediately left the area, it is logical that any average reasonable man would be affected by such a gruesome sight, what more when it is of their beloved spouse.
In conclusion, we submit that the hospital owes a duty of care towards the Appellant and should be liable for the psychiatric injury sustained by the Appellant as the Appellant has fulfilled all the requirements to establish herself as a secondary victim and that the Appellant has suffered a recognized psychiatric injury due to the shocking event.