pang koi fa v lim djoe phing

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Pang Koi Fa v Lim Djoe Phing[1993] 3 SLR 317; [1993] SGHC 153

Suit No: Suit 1112/1988, Suit 791/1987 (Consolidated)

Decision Date: 02 Jul 1993

Court: High Court

Coram: Amarjeet Singh JC

Counsel: Nathan Isaac and Abdul Rohim Sarip (Nathan Isaac & Co) for the plaintiff, Defendant absent

Judgment

[Please note that this case has not been edited in accordance with the current Singapore Law Reportshouse style.]

Amarjeet 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, aneurosurgeon, on the basis that his negligence, which resulted in the death of her daughter, caused the plaintiffto suffer a psychiatric illness which persists even today. In Suit No 791 of 1987, consolidated with the presentsuit, I had found the defendant liable in negligence for the death of Miss Chong Yun Jing, aged 22. Hisnegligence having been established, I turned to consider his liability in respect of the plaintiff. At the end of thetrial, I found him liable in negligence for the plaintiff’s psychiatric illness and awarded damages accordingly. Inow give my reasons.

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

The facts

3 Briefly, the facts relating to the death of the plaintiff’s daughter are as follows. She had been theplaintiff’s only daughter, and according to Chong Yuen Ching, PW6, the plaintiff’s only son, she was the

Case Law



plaintiff’s only daughter, and according to Chong Yuen Ching, PW6, the plaintiff’s only son, she was theplaintiff’s sole confidante with whom she shared all her worries. The deceased worked in the family’s twocompanies, at the same time studying part-time at the Singapore Polytechnic. At the time of her death, she wasin 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 PakOn (‘Dr Tham’) and was recommended to consult the defendant, a neurosurgeon practising under the name andstyle 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 afterwhich he told the plaintiff and the deceased that she had a tumour between her eyes. He told the plaintiff thatthe deceased had to undergo an operation immediately otherwise she would die or go blind. The plaintiff wasgravely concerned at this news and having persuaded her reluctant daughter to submit to the operation, gave thego-ahead to the defendant. As a result, a transphenoidal operation (through the nose) was performed on thedeceased on 6 June 1985 for the removal of what purported to be a microadenoma — a small tumour — of thepituitary gland.

6 As it turned out, the defendant had removed perfectly healthy tissue, and in the process had caused atear in the deceased’s arachnoid membrane, one of the three meninges covering the brain. This was notdetected 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 aftermuch 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 throughouther suffering and the shock of her daughter’s death. According to her psychiatrist, Dr Lim Hsin Loh (‘DrLim’), the plaintiff felt very guilty about the operation and felt responsible for it. The sequence of events whichcontributed 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. Shecould not open her right eye. A nose pad covered the nasal dissection. The next day she was moved into a wardand the plaintiff was told to get a private nurse. She hired two nurses on 12-hour shifts. A few days later, thenose pad was removed. The deceased started dripping from the nose. She complained of blurred vision and hada high fever. She drank a lot 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, theplaintiff 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 beganto have serious doubts about the operation. On 24 June, despite the fact that the plaintiff had not asked for herdischarge, and despite the poor condition of the deceased, the defendant discharged the deceased from thehospital. She was brought home in an ambulance, with a intravenous drip still set in her. The plaintiff was veryupset at this.

10 At home, the deceased continued complaining of headaches. She still dripped from her nose and hercondition remained poor. The plaintiff called the defendant several times to ask for advice, as did the privatenurses still caring for the deceased, as well as the deceased herself. The defendant refused to visit her and evenadmonished 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 readmitted. The defendant wasinformed and paged by the matron but he did not respond until the evening of her re-admission. In themeantime the plaintiff made her own efforts to find another doctor. The next day, the plaintiff told thedefendant in desperation that she wanted a change of doctors as he was not treating the deceased. For a shortwhile, Dr HI 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 thecare 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 discoveredthat the defendant had been negligent and the operation had never been necessary and further that the fluiddripping out of her daughter’s brain was essential brain fluid. Dr John Thambyah, PW3, a consultant physicianand a specialist in endocrinology, testified that the leakage could have been repaired had immediate steps beentaken and with the help of antibiotics, the infection would have been avoided. As it turned out, the plaintiff hadto 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’soperation 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 andagony and upon her death, she was on the verge of a breakdown and almost committed suicide. In September1985 she complained to Dr EA Heaslett of palpitations of the heart, breathlessness, insomnia, episodes ofcrying, loss of interest in her work and social life and pre-occupation with memories of her daughter. Hetreated her for a severe depression until January 1988. Her family observed that she had undergone apersonality change. Her relationship with her son and husband were strained. She was constantly preoccupiedwith 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 otherfamilies 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 andbanging 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 anotherpsychiatrist very briefly. He continued the treatment. He saw her often, sometimes every fortnight, sometimesmonthly, sometimes after long periods in the last five years. She related to Dr Lim a history of how herdaughter had been hospitalized and then succumbed to her injuries, and how she had been at her daughter’sbedside 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 Limwas of the opinion that the plaintiff suffered from a mood disorder, a depressive illness secondary to griefarising out of the circumstances surrounding her daughter’s death, in particular, whether her daughter had abrain tumour and whether the operation had been necessary. Her tendency to preserve her daughter’s room athome and desk in the office was known as ‘mummification’ and was a symptom of a severe grief reaction. DrLim was of the opinion that the plaintiff had become a psychiatric patient. He also referred to medical reportsof 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. In that case,a car driven by the plaintiff’s husband and carrying three of her children was involved in a serious roadaccident which had been caused by the negligence of the defendant. The plaintiff was informed of the accidenttwo hours later and rushed to the hospital where she saw two of her children and her husband in pain andshock, bleeding from their injuries, and covered with dirt and grease from the accident. She heard her sonscreaming in pain. She was also told that her youngest daughter had died. As a result of what she had seen andheard at the hospital, the plaintiff suffered severe shock, organic depression and a change of personality forwhich she sued the defendant.

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

19 This positive attitude towards recovery for nervous shock was sustained and upheld in Alcock & Ors vChief Constable of the South Yorkshire Police, the latest and by far the most important pronouncement sinceMcLoughlin 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 FACup semi-final between Liverpool and Nottingham Forest, the South Yorkshire police force negligentlyallowed far too many spectators to enter the grounds of the stadium at Leppings Lane end, causing a massivecrush of human bodies, and resulting in the deaths of 95 people and injuries to over 400 others. Scenes fromthe ground were broadcast live on television from time to time during the course of the disaster all overEngland. Those who tuned in to see the match in Singapore live by satellite transmission will remember theappalling tragedy unfolding in their living rooms. Recordings were broadcast later. In the case of 13 of theplaintiffs, their relatives and friends were killed; in the case of two plaintiffs, their relatives and friends wereinjured; 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 werealleged to have been caused by the experiences inflicted upon them by the disaster. Whilst admitting liability innegligence in respect of those who were killed or injured, the Chief Constable denied that he owed any duty ofcare to the plaintiffs.

21 The House of Lords took the opportunity to review and restate the position on liability for nervousshock. The decision in Alcock was subsequently followed in the Court of Appeal in RederiaktiebolagetTransatlantic v Ravenscroft where the court in considering the remarks that had been made in Alcock doubtedthe decision in Ravenscroft v Rederiaktiebolaget Transatlantic and allowed the defendant’s appeal and deniedplaintiffs 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 thecourts in England are not part of the hierarchy of courts in Singapore, this being especially true since legislativeamendments have limited appeals to the Judicial Committee of the Privy Council; nonetheless, in respect ofdecisions in common law, particularly in the area of tort in general and negligence in particular, decisions ofthe highest court in England should be highly persuasive if not practically binding. As such, full regard must behad to the position in the law as a result of Alcock.

23 Their Lordships in Alcock were unanimous in recognizing that the law had developed so far as torecognize that liability could arise where a tort-feasor causes a recognizable psychiatric illness in a party whosuffers shock as a result of witnessing, in some way or other, the infliction of physical injury, or the risk ofphysical injury upon another person. Although four separate opinions were set out, Lord Lowry having decidedto refrain from adding further observations of his own, their Lordships shared a common view as to theelements that needed to be proved before a party could succeed on a claim in nervous shock. In essence, theirLordships adopted the three proximities propounded by Lord Wilberforce in McLoughlin. However, becausethe approach taken in Alcock to the proximities was different from that taken by Lord Wilberforce, it is usefulto 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, recognized to be the seminal case on nervous shock before Alcock, Lord Wilberforceapplied his own dictum in Anns v Merton London Borough Council at p 498 in which case earlier heestablished the two-stage test in determining liability, viz:

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

25 Lord Wilberforce went on to establish that nervous shock could be a reasonably foreseeableconsequence of a tort-feasor’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 inMcLoughlin, at p 304 para e to g:

… there remains, in my opinion, just because ‘shock’ in its nature is capable of affecting so wide a rangeof people, a real need for the law to place some limitation on the extent of admissible claims. It isnecessary to consider three elements inherent in any claim; the class of persons whose claims should berecognized; 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 wasestablished in subsequent cases. The point to note is that Lord Wilberforce had expressed them as policyconsiderations in the second stage of the Anns two-stage test. As such, the approach adopted was flexible andopenended, and the extension of the classes of persons and situations in which recovery was allowed would beby 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 inCaparo Industries v Dickman where their Lordships adopted the dictum of Brennan J in the High Court ofAustralia in Sutherland Shire Council v Heyman (at p 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 ofcare restrained only by indefinable ‘considerations which ought to negative, or to reduce or limit thescope 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 p 585 parae to f, where he said:

… Thus the postulate of a simple duty to avoid any harm that is, with hindsight, reasonably capable ofbeing foreseen becomes untenable without the imposition of some intelligible limits to keep the law ofnegligence within the bounds of common sense and practicality. Those limits may have been found bythe requirement of what has been called a ‘relationship of proximity’ between the plaintiff and thedefendant and by the imposition of a further requirement that the attachment of liability for harm whichhas 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 tort-feasor, and third, theattachment 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 asstated in McLoughlin which was adopted in Alcock may be seen in its proper perspective. As stated before, thethree 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 theareas in which recovery was allowed for nervous shock was arguably more lax. Illustration may be found intwo cases, Attia v British Gas plc and Hevican v Ruane.

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

32 In Hevican, recovery was allowed where the plaintiff had not only not observed the accident causing thedeath of his son, he had not even been present at its ‘immediate aftermath’ within the meaning as applied inMcLoughlin in that he had only seen his son’s body in the mortuary some three hours after the accident. Theson’s body showed no signs of disfigurement. The psychiatric illness caused was a result of the news of hisson’s death, the sight of the body and a continuing sense of loss. Hevican was considered after the judgment inCaparo had been delivered but, with respect, I doubt if proper effect had been given to the changes wrought inCaparo. Instead, Mantell J considered proximity in its physical and causal senses. On the basis of Donoghue vStevenson, he rejected the requirement of physical proximity, while on the basis of Home Office v DorsetYacht, he considered that the requirement of causal proximity had been met. He then considered therequirement of a ‘relationship of proximity’ in the sense of reasonable foreseeability, thus confusing the firsttwo requirements in the Caparo three-stage test. Mantell J then considered that as there were no policyconsiderations negativing the existence of a duty, the plaintiff was entitled to recovery. Hevican thus extendedthe range of situations in which there could be recovery for nervous shock to instances where the news of atragic event had been communicated by a third party. For this reason it was doubted by all their Lordships inAlcock 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, theirLordships in Alcock 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 Lordshipsexpressed their concern that it was an insufficient requirement, particularly since the injury considered is, asstated by Lord Keith (at p 913 para j) ‘more subtle’ and a ‘secondary sort of injury’, and as Lord Jauncey states(at p 933 para e) ‘different considerations apply because of the wide range of people who may be affected’. Theadditional consideration applied by their Lordships was that of the ‘relationship of proximity’ according to thethree proximities applied by Lord Wilberforce in McLoughlin, but unlike Lord Wilberforce, their application ofthe three proximities was not a consideration of policy which limits the classes of cases where liability may beestablished. Instead, their considerations of the three proximities were as a means of conditioning the duty ofcare, a further limitation to the existence and scope of the duty. In other words, instead of considering theproximities as limitations to the classes where as a matter of policy, recovery may be permitted, the proximitieswere legal requirements defining the classes wherein recovery may be permitted, barring the additional



were legal requirements defining the classes wherein recovery may be permitted, barring the additionalconsiderations of justice and reasonableness. As legal requirements, the threshold for their fulfilment is thus alegal threshold, and the extension of liability would be on an incremental basis by analogy with establishedcategories, rather than on general principles of reasonable foreseeability. The parameters of the scope of theduty to avoid inflicting nervous shock had thus been redefined.

34 In a sense the conservative and categorized approach taken in Alcock is not peculiar to Englishjurisprudence. The development of the law relating to what is commonly referred to in the US as ‘negligentlyinflicted emotional distress’ (NIED), which is the equivalent of nervous shock in English common law, appearsto parallel that in England. It began with the Californian decision in Dillon v Legg which was influential inMcLoughlin’s case, where it was held that a parent who witnesses the negligent infliction of death or injury onhis or her child may recover from the resulting emotional trauma and physical injury in cases where the parentdoes not fear imminent physical harm. Following from that, a series of Californian decisions appeared toextend the principles of NIED further and further until, in Thing v La Chusa, the Supreme Court of Californiashed its adventurism and circumscribed the situations in which recovery for damages could be made in suchcases by requiring a close relationship by the plaintiff to the injured victim and requiring that the emotionaldistress 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 nervousshock cases. In McLoughlin, Lord Wilberforce elaborated upon his ‘three proximities’ in these terms (at p 304para f):

As regards the class of persons, the possible range is between the closest of family ties, of parent andchild, or husband and wife, and the ordinary bystander. Existing law recognizes the claims of the first; itdenies that of the second, either on the basis that such persons must be assumed to be possessed offortitude sufficient to enable them to endure the calamities of modern life or that the defendants cannot beexpected to compensate the world at large. In my opinion, these positions are justifiable, and since thepresent case falls within the first class it is strictly unnecessary to say more. I think, however, that itshould follow that other cases involving less close relationships must be very carefully scrutinized. Icannot say that they should never be admitted. The closer the tie (not merely in any relationship, but incare) the greater the claim for consideration. The claim, in any case, has to be judged in the light of otherfactors, 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. Itis after all, the fact and consequence of the defendant’s negligence that must be proved to have causedthe ‘nervous shock’. Experience has shown that to insist on direct and immediate sight or hearing wouldbe impractical and unjust and that under what may be called the ‘aftermath’ doctrine, one who, fromclose proximity comes very soon on the scene, should not be excluded. In my opinion, the result inBenson v Lee [1972] VR 879 was correct and indeed inescapable. It was based, soundly, on ‘directperception 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 WaverleyMunicipal Council (1939) 62 CLR 1, where a child’s body was found floating in a trench after aprolonged search, may perhaps be placed on the other side of a recognizable line … but, in addition, Ifind 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 shewould come immediately to the scene (normally a parent or a spouse) could be regarded as being withinthe scope of foresight and duty. Where there is not immediate presence, account must be taken of thepossibility 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 beapplied by the courts.

Lastly, as regards communication, there is no case in which the law has compensated shock broughtabout by communication by a third party. In Hambrook v Stokes Bros [1925] 1 KB 141, [1924] All ER110, indeed, it was said that liability would not arise in such a case, and this is surely right. It was sodecided in Abramzik v Brenner (1967) 65 DLR (2d) 651. The shock must come through sight or hearingof the event or of its immediate aftermath. Whether some equivalent of sight or hearing, eg throughsimultaneous 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 immediateaftermath of the accident and having witnessed and been overcome by her family’s injuries and conditionsbeyond 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 are set out in the headnote (at p 908 para c to h of the All ERreport) and may conveniently be referred to here:

A person who sustained nervous shock which caused psychiatric illness as a result of apprehending theinfliction of injury or the risk thereof to another person could only recover damages from the personwhose negligent act caused the physical injury or risk to the primary victim if he satisfied both the test ofreasonable foreseeability that he would be affected by psychiatric illness as a result of the consequencesof the accident because of his close relationship of love and affection with the primary victim and the testof proximity in relationship to the tort-feasor in terms of physical and temporal connection between theplaintiff and the accident. Accordingly, the plaintiff could only recover if (i) his relationship to theprimary victim was sufficiently close that it was reasonably foreseeable that he might sustain nervousshock if he apprehended that the primary victim had been or might be injured; (ii) his proximity to theaccident in which the primary victim was involved or its immediate aftermath was sufficiently close bothin time and space and (iii) he suffered nervous shock through seeing or hearing the accident or itsimmediate aftermath. Conversely persons who suffered psychiatric illness not caused by sudden nervousshock through seeing or hearing the accident or its immediate aftermath or who suffered nervous shockcaused by being informed of the accident by a third party did not satisfy the tests of reasonableforeseeability 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 meetrequirements (ii) and (iii). It was held that the perception of the tragedy at Hillsborough through the medium ofthe television, particularly when television broadcasting guidelines forbade the depiction of suffering byrecognizable victims, as well as the communication of the news by third parties to some of the plaintiffsindicated that the plaintiffs had not been in sufficient proximity either in time or in space to the events andwould 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 nervousshock who is within the same zone of danger as the primary victim or in a situation where such a plaintiff isoutside the zone of danger of physical risk but mental (or physical) infirmity is brought on by emotionaldisturbance resulting from a defendant’s conduct. In the appropriate latter case, a plaintiff is considered to be asmuch in a zone of risk as a result of his responses. The question then is whether the plaintiff under the lattercategory as in this case meets the necessary criterion for determining the question of foreseeability in relationto her claim for damages for her psychiatric illness. Whether the defendant owes a duty to the plaintiff as aresult of his negligent conduct is the foreseeability of the risk of his conduct affecting the plaintiff. The factorsfor 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 thatof the primary victim. In Alcock, it was held per curiam that the class of persons whose claims could berecognized was not limited to the narrow range of relationships such as husband/wife or parent/child. It isrequired, however, that the relationship must be within the defendant’s contemplation. The reason for allowingrecovery more readily in respect of persons within the parent/spouse category is the presumption, albeit arebuttable one, of the existence of ties of love and affection between the parties and fear for the safety for achild or spouse and the natural inclination to protect them from danger or continuing danger to their lives. Itcan and should be reasonably foreseen by the tort-feasor that his actions would be likely to cause nervousshock to the parent or spouse of ordinary constitution who witnesses a gravely traumatic event or istraumatically enmeshed by its ‘aftermath’.

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

Proximity to the tortious event

42 The second requirement to be considered is whether the plaintiff was proximate both in time and spaceto the tortious event complained of by analogy to existing cases and in the light of the particular facts of thiscase. Here there was no accident which could have been witnessed by the plaintiff in the sense that she couldhave seen the physical injuries as they were being inflicted upon her daughter. The case has therefore to beviewed in a slightly different light. The situation, though, is somewhat analogous to instances such as in



McLoughlin or Jaensch v Coffey, where the plaintiffs came upon the immediate aftermath of the accident andwitnessed 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 hisdiagnosis of the deceased at his clinic at the Mount Elizabeth Medical Centre. She had taken his advice and hadasked her daughter to proceed with the operation as recommended and she was again at her daughter’s bedsidein the intensive ward of Mount Elizabeth Hospital immediately after the operation. She was with her daughterwhen she was negligently discharged by the defendant and sent home by ambulance whilst still in a poorcondition and again by her bedside at home with two nurses tending to her. She brought the daughter back tothe hospital as her condition grew precarious and after the defendant had ignored her requests to urgently makehouse calls and treat her daughter.

44 The answer to the question posed earlier as to whether the plaintiff was proximate both in time andspace 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 isthe 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 thepassage I have quoted from McLoughlin, viz that ‘the shock must come through sight or hearing of the event orof its immediate aftermath.’ It should be noted, however, that in all the previous cases in English common lawrelating to nervous shock, the negligence complained of has normally led to a particular event which occurredwithin a short space of time, usually a traffic or railway or other accident, or as in Alcock, a disaster whichunfolded within the space of a few minutes. In these cases therefore, it has been possible and indeed logical, tohave required the immediate sight or hearing of the horrific event in question. That, however, cannot mean thatin this case, merely because some of the negligent acts complained of are acts which cannot reasonably bewitnessed by a person in the plaintiff’s position, she immediately fails the third requirement in establishingforeseeability and thus fails in her action. One would not expect any relative or spouse of a patient to bepresent during an operation. Neither would one expect that person to realize immediately whether or not aparticular operation was being carried out negligently. Thus whilst the plaintiff was not immediately aware thatthe defendant had been negligent in his diagnosis and in his performance of the operation, she was witnessingthroughout 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 Americanjurisprudence which has been influential in shaping the common law on the subject. It is particularly useful torefer to these cases in the absence of such cases in English jurisprudence. I refer particularly to medical casessimilar to the present where the plaintiffs have suffered ‘negligently inflicted emotional distress’ (NIED, towhich 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 shouldnot preclude the courts from looking at judicial decisions in the US, which offer a far more diverse and broaderbase of situations upon which legal developments may be founded. The cautionary principles to bear in mindare that the law may have developed in directions vastly different from those in the Commonwealth, so thatcases must be viewed with much more circumspection.

48 In this particular instance, where I am considering the position relating to a claim against a medicalspecialist for the psychiatric illness he has negligently inflicted upon the plaintiff in the course of his specialistwork, I find that reference to the Californian cases is not unjustified, particularly since the Californian positionrelating to NIED appears to reflect the English position. Dillon v Legg, the seminal case on NIED, states at pp80–81:

Since the chief element in determining whether defendant owes a duty or an obligation to plaintiff is theforeseeability of the risk, that factor will be of prime concern in every case. Because it is inherentlyintertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a caseby 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. Wecan, 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 resultedin physical injury and we confine our ruling to that case. In determining, in such a case, whetherdefendant should reasonably foresee the injury to plaintiff, or in other terminology, whether defendantowes 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 andcontemporaneous observance of the accident, as contrasted with learning of the accident from others afterits occurrence.

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

The evaluation of these factors will indicate the degree of the defendant’s foreseeability: obviouslydefendant is more likely to foresee that a mother who observes an accident affecting her child will sufferharm than to foretell that a stranger witness will do so. Similarly the degree of foreseeability of the thirdperson’s injury is far greater in the case of his contemporaneous observance of the accident than that inwhich 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 willsuffer more than a temporary emotional reaction. All these elements, of course, shade into each other; thefixing 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 isallowed is similar if not exactly parallel with recovery for nervous shock in English common law. The ‘threeproximities’ 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 ofSanta Clara County, a decision of the Supreme Court of California. Thirteen-year-old Rudy Ochoa wasadmitted to the custody of the Santa Clara County juvenile hall. On 23 March 1981, he became ill with anapparent cold and went to the infirmary for care and treatment. His parents visited him on 24 March and sawthat he was ‘extremely ill’, holding his left side in an attempt to relieve severe pain. He told his parents that hewas very sick and had been told that he had a ‘bug’. Gloria Ochoa, the plaintiff, spoke with the juvenile hallauthorities, expressing her concern as her son was not receiving the necessary treatment. At this time, sheexperienced 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 paleand looked dehydrated, his skin was clammy and sweaty and he appeared to be going into convulsions andhallucinating during most of her visit. She was ‘very distressed and concerned’ and requested that she beallowed to take her sick child to see her own physician. She was told that he only had the flu and should remainin the infirmary. The boy repeatedly asked to be taken to see their private doctor and the plaintiff was told thatshe 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 andhis side was tender to the touch. She repeated her requests to the nurses but was instead told to leave. Sherefused to do so. While she was applying cold compresses to her son, she tried to roll him on the side but herson yelled and screamed, complaining of excruciating pain in his chest area. The doctor was called but noexamination was made of the boy in the plaintiff’s presence. Throughout, the boy was vomiting and unable toretain any fluids and was observed by infirmary personnel to be coughing up blood. The plaintiff was told toleave and never saw her son alive again. She testified that she had ‘experienced extreme mental and emotionaldistress’ because of her son’s condition and because it appeared that her child’s medical needs were beingignored. 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 sinceher shock and trauma stemmed from her ‘sensory perception of the defendant’s conduct’ and her loved one’sinjury, particularly as the defendants could clearly foresee Mrs Ochoa’s traumatic reaction.

54 The detailed account of the facts in Gloria Ochoa’s case shows the close parallel between that case andthe present one. The plaintiff here had been with her daughter from her first consultation with the defendant toher death. She had seen, in the closest possible proximity, the deterioration of her erstwhile healthy daughter toa sickly girl in great pain and distress. As in Ochoa’s case, the plaintiff was a percipient witness of theappalling neglect and lack of care of the defendant for her daughter’s well-being. Immediately after theoperation in the intensive care ward she saw that the deceased could not open one of her eyes. She saw herdaughter dripping fluid from her nose which she later found out to be essential brain-fluid (CSF). Four daysafter the operation, she (the daughter) became confused and irrational. Her post-operative condition hadremained poor until some three weeks after the operation when she was discharged prematurely by thedefendant and sent home in an ambulance with the intravenous drip still set in her. He had refused to take callsor 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 herdaughter were met with a brusque and negligent attitude which added to her mental and emotional distress. Hisconduct drove the plaintiff to search in desperation for medical attention from others. She then learned from themedical consultants she engaged that the operation had not been necessary at all and that healthy tissue hadbeen removed from her daughter’s brain. Thereafter she continued to be by her daughter’s bedside while thedaughter underwent further surgery and medication, and — more pain and suffering. Meningitis by nowunarrestable and its complications quickly took their course and her daughter’s life over the next ten weeks orso.

55 The plaintiff had witnessed much suffering by her daughter. She had observed the effects of thedefendant’s negligent diagnosis, negligent operation and observed his negligent post-operative treatment of herdaughter. All this was, in my opinion, the cause of the plaintiff’s severe depressive illness described by theplaintiff’s psychiatrist Dr Lim as post-traumatic stress disorder and pathological grief. The plaintiff’scontinuous presence by the side of her dying daughter in the aftermath of the negligent operation and duringthe post-operative negligent treatment, the traumatic effects of which continued notwithstanding subsequentmedical attention by other consultants can be equiparated with the viewer being within sight and hearing of theevent and its immediate aftermath. There was therefore sufficient proximity in my opinion, in time and spaceto the tortious event and a blending of the twin elements of foreseeability and proximity, to allow the plaintiffto 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, is an extension beyond theexisting limits in recovery for the negligent infliction of psychiatric illness established in either Alcock orDillon. 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 accidentaloccurrence. That, however, to my mind ought not to preclude recovery. As I have already expressed in the caseof an abnormal event or abnormal case involving medical negligence — unlike that of a car accident whichmay be seen or heard — a doctor’s negligent act or acts such as a negligent diagnosis, a negligent operation ornegligent prescription of medicine can hardly ever be witnessed. What can be witnessed, however, and what isrequired to be witnessed, is the calamitous effect of that conduct on the primary victim as has happened in boththese cases. The resulting trauma and psychiatric injury arising in these cases in a plaintiff is nearly alwaysfrom a close, constant and unremitting perception of the suffering, distress and pain of the primary victimwhere death is not immediate — the perception directly inflicting emotional and mental stress as a result of thecallous and negligent attitude of the medical professional and as such ought to be recognized as a logical,analogous and necessary step forward in recovery of a plaintiff’s claim. This case is different from the usualcases of nervous shock where there was a traffic accident causing the injury to the primary victim, but it is notso 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 was of the same view. Having reviewed the authoritieswhich 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 theconclusion that the ‘sudden occurrence’ requirement is an unwarranted restriction on the Dillonguidelines. Such a restriction arbitrarily limits liability when there is a high degree of foreseeability ofshock to the plaintiff and the shock flows from an abnormal event, and, as such, unduly frustrates thegoal 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 ofshock to the plaintiff and that the shock flowed from the abnormal events being the serious negligent acts ofthe defendant.

59 I therefore adopt the principle in Ochoa which was approved in the subsequent case of Thing v LaChusa to the extent that recovery of damages for what may most appropriately be called the negligent inflictionof psychiatric illness would be permissible if the plaintiff has observed the defendant’s conduct as well as theinjury 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 thelaw in any authorities that have come to my attention. Lord Ackner in Alcock in referring to sudden shock saidat p 918:

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

61 It will be appreciated that the dicta of Lord Ackner no doubt left open the inclusion of situations ofpsychiatric illness in the appropriate and abnormal case where the elements of suddenness may not be presentas 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 opinionexclude situations where psychiatric illness is caused to care-givers of the primary victims of negligence inordinary cases, where the toll taken on them over a period of time of watching their close relatives suffercauses a nervous illness. This case, while appearing to be similar to those situations, is entirely different in thatthe psychiatric evidence and the facts as I have found, show that the trauma and the shock suffered by theplaintiff was not equivalent to that of a care-giver, but of a mother who suffered the consequences of thedefendant’s negligence, who has had to suffer the distress and trauma of watching helplessly as her daughterwas negligently managed and cared for by the defendant, and who realized the true impact of the defendant’snegligence 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 aclaim for grief, sorrow, deprivation and suffering which arises out of necessity for caring for those who may benear and dear who have suffered injury from a distressing event. This category of claim is clearly untenable. Indistinguishing the present case from the ones relating to just grief and suffering, I must say that here the claimis not exclusively for the loss the plaintiff has suffered, nor the sense of loss she feels. Rather, I view it as aclaim for the psychiatric illness she now suffers as a result of the trauma and shock she underwent when herdaughter suffered and died from an operation negligently performed by the defendant and the defendants’ othernegligent acts — events of which she was a percipient witness in terms of the elements of immediacy, closenessof time and space, visual and aural perception. Hence in my view, the claim is successful as an incrementaland 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 psychiatricillness is caused by the defendant’s negligence. It was his negligent diagnosis that led her to believe that herdaughter was close to death or blindness. It was his negligent advice that led her to persuade her reluctantdaughter to submit to the operation. It was his negligence in operating on her daughter that caused her to sufferthe complications from which she died. Hence the death which occasioned the shock in the plaintiff can berelated directly to the defendant. The psychiatric illness has been documented and recognized by the plaintiff’spsychiatrist, whose evidence I accept in toto. The plaintiff is therefore within the scope of the duty to avoidnervous 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 categorization by Lord Oliver inAlcock 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 causedto others.’ (At p 923 para a to b.) (Emphasis added.)

65 Into the latter category falls the usual cases of an accident which is witnessed by the plaintiff or wherethe immediate aftermath is witnessed by the plaintiff, viz Alcock, McLoughlin and the like cases discussedabove. 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 describedas cases where (at pp 923 to 924):

… the negligent act of the defendant has put the plaintiff in the position of being, or of thinking that he isabout to be, or has been, the involuntary cause of another’s death or injury and the illness complained ofstems from the shock to the plaintiff of the consciousness of this supposed fact. The fact that thedefendant’s negligent conduct has foreseeably put the plaintiff in the position of being an unwillingparticipant in the event establishes of itself a sufficiently proximate relationship between them and theprincipal question is whether, in the circumstances, injury of that type to the plaintiff was or was notreasonably foreseeable.

67 Here Lord Oliver cited three cases. In Dooley v Cammell Laird, the plaintiff was a crane operator whosuffered nervous shock when the rope connecting a sling to the crane hooks snapped and caused the load to fallinto the hold of a ship where his colleagues were working. His illness was caused by his shock from the suddenfear he felt that he had been the cause of death or injury to his fellow workmen. In Galt v British RailwaysBoard, a train driver was in the course of his employment when he rounded a bend and saw two men on thetracks not 30 yards away. He thought that they had been killed when the train passed. As a result he sufferedpains and myocardial infarction. In Wigg v British Railways Board, another train driver saw a passenger tryingto get on the train and hanging on to the railings until he fell between the train and the platform. He stoppedthe train and went to comfort the man, thinking he was still alive. As a result he suffered psychiatric illness. Inall three cases, the claims were successful in that the defendants had, through their negligence, been responsiblefor 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 injuryresulting yet recovery was allowed.

68 In my opinion, the plaintiff’s situation falls squarely within the cases contemplated. Through thedefendant’s negligence, she had caused her daughter to submit to an operation which had not been necessarysuch that a perfectly healthy gland was removed and her daughter was subjected to the unnecessary risk ofinfection from which she died. It was the realization that the defendant had misdiagnosed her daughter’s casewhich had caused the plaintiff to blame herself for the death of her daughter. I see no problems in remotenesssince 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 ofLord Oliver’s analysis where he said, at p 931 para a:

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

70 As I have emphasized, the claim here is neither for grief, sorrow, nor deprivation, but for the psychiatricillness wrought upon the plaintiff as a result of her having, on the basis of the defendant’s negligence and hisexhortations that the operation was necessary lest her daughter died or went blind, persuaded her daughter toundergo 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 importof his advice, and the consequences it would bring; ought to have known that both the plaintiff and herdaughter trusted him implicitly to do his best; yet had carried out his duties as a specialist in such a negligentmanner and has taken no responsibility for his own acts; that as such he should reasonably expect that as aresult of his actions, he would cause much suffering to the plaintiff who had brought the deceased forconsultation with him and between both of whom (ie the plaintiff and the defendant) all subsequentcommunication passed regarding the medical care of the deceased, to the extent that he would reasonably haveexpected her to have suffered psychiatric illness as she has, and that he should suffer the consequences of hisactions 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 requirementsfor recovery as stated in Alcock. There must still be a need for the damage incurred to be reasonablyforeseeable, and that there must be a sufficient relationship of proximity between the plaintiff and the tort-feasor. The difference in this alternative view lies in the fact that the requirement of the three proximities ismodified somewhat to reflect the situation envisaged. Hence the class of persons who may recover may notmerely be limited by the ties of love and affection, but carry the additional requirement that the defendantthrough his negligence has put the plaintiff in a position of being morbidly pre-occupied with the thought thathe or she had been responsible for the injury resulting to the primary victim. As to the physical proximity, thisrequirement remains the same. As for the final requirement of the means by which the shock is inflicted on thenervous system and the element of suddenness in respect of which element my opinion as expressed earlierapplies, the shock may result not merely from a direct perception through sight or hearing of the accident or itsimmediate aftermath, but includes concomitantly the sudden and horrifying realization which one would expecta reasonable person in the position of the plaintiff to have, that he or she was responsible for the damage orinjury caused.

Policy considerations

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

73 The most common argument to be made against recovery in this case, which would have been made hadthe defendant been represented, is that there may be a danger of the opening of the floodgates to more litigationin this area. In dismissing such a contention, regard should be had to the speeches in McLoughlin, particularlyLord Wilberforce’s opinion expressed at p 304 para e that:

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



74 Lord Edmund-Davies (at p 307 para d to e) was similarly unconvinced, particularly since the rejection ofany claim on the basis of such arguments would involve, as he quoted ‘the denial of redress in meritoriouscases’.

75 There is therefore no ‘fear of floodgates’ being opened and courts being deluged with a mass of cases ofa similar sort since the task of meeting the legal requirements is onerous indeed. There is a need to prove thatthe plaintiff has suffered a recognizable psychiatric illness through convincing medical evidence. Apart fromthis, 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 thiscase must necessarily be confined to cases of medical negligence to the extent that has occurred in this caseand in Ochoa as approved in Thing v La Chusa. Lest this be taken as a precedent for more remote cases lessdeserving of attention, it should be stressed once again that the key difference is in the fact that the plaintiff hasbeen a percipient witness of the negligence of the defendant and the dire consequences it wrought on herdaughter.

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

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

Damages

79 The original claim was for special damages of $12,095.30 as medical expenses incurred for the treatmentof her depressive illness, $100,000 in general damages on the basis of the 16,500 pounds sterling allowed inRavenscroft and the 22,500 pounds sterling awarded in Brice v Brown, as well as $1,500 per year for a periodof 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), Iawarded the following in damages:

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

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

(3) $50 bi-monthly for five years being provision for future psychiatric consultation — a total of$1,500; and

(4) costs to the plaintiff.

Plaintiff’s claim allowed.

Reported by Liu Hern Kuan

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