A study regarding psychiatric Illness and its legal development in Malaysia.

1. 0
LIA1006 TORT II ASSIGNMENT
SESSION: 2
SEMESTER: 2017/2018
MATRIC NUMBER:
LIA170015
LIA170041
LIA170075

2. 1
Psychiatric injury is a recognized psychiatric illness that caused by a nervous shock, as
distinct from normal grief, sorrow or anxiety1
. Traditionally the term “nervous shock” has been
used to describe the harm in question. But more recently that term has been strongly criticised as
“crude”2
, “quaint”3
and as a “misleading and inaccurate expression”4
.Based on the definition, it is
clear that law has a narrow definition on what is psychiatric injury. There are few cases law suggest
that mere emotions are not sufficient as everyone is expected to accept these parts of life. Arguably
it remains a convenient label in indicating that, to be compensatable, a psychiatric illness must
usually be the result of shock or trauma5
. Besides that, psychiatric illness is a recognized cause of
action in Malaysia even though we do not have as many cases in our jurisdiction compared to
common law countries.
Hence, to see the development of law in this topic, it is necessary for the local practitioners
to refer to the English cases first. To have a clear understanding between two different approaches
which are “medicalist” and “legalist”, we need to look at the legal history of psychiatric illness.
Originally, there was no duty of care in relation to physical illness, but with ubiquity of technology,
there has been piecemeal recognition of liability in this era.
The earliest case in which damages were awarded for mental pain without any physical
injuries was I de S et ux. v W de S 6
. This case is about an innkeeper who brought a successful case
on his wife’s behalf against a guest at the inn who had thrown a hatchet at his wife. She dodged and
was not physically injured but the court granted damages because of the emotional effects of fright
1
Oxford Dictionary of Law
2
(1984) 155 CLR 549, 552, per Gibbs CJ..
3
[1983] 1 AC 410, 432, per Lord Bridge.
4
[1988] QB 304, 317, per Bingham LJ
5
[1992] 1 AC 310, 351, per Parker LJ
6
(1348) Y.B. 22 Edw. III,f. 99, pl.60

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that resulted from an intentional act. This shows that even though there was no physical injury,
damages are coverable if the emotional response is brought by the defendant’s intentional act.
Next, much later in Wilkinson v. Downton7
, a practical joke, Downton the defendant told
Wilkinson the plaintiff that her husband had been seriously injured in an accident and was lying in
a ditch with broken bones. The effect of Downton’s statement was a violent shock to her nervous
system resulting in weeks of suffering and incapacity. Wilkinson brought a suit for damages
resulting from her injuries and damages were awarded in her favour. This decision is seen to create
a new tort which is the infliction of nervous shock. As it was in Janvier v Sweeney8
which Wilkinson
v Downton was followed. Mullany and Handford point out that there have been only a few
Wilkinson v Downton cases in Commonwealth countries but a vast number in the United States9
.
Furthermore, by the early of twentieth century, the English courts started to recognize a
cause of action for negligently inflicted psychiatric illness. A claimant who becomes mentally ill
because of the shock to his nervous system caused by an incident that either threatened his own
safety or involved witnessing could in certain circumstances recover compensation for psychiatric
injury. In the case of Dulieu v White10
, the defendant had negligently driven his van into a public
house where the plaintiff was serving customers behind the bar. The plaintiff who was pregnant,
had suffered nervous shock and followed by a miscarriage. It was held that the plaintiff could
recover damages because she was put in fear of her own safety. Kennedy J uphold her claim by
citing Wilkinson and he also suggested in his judgment that recovery should only available when
the plaintiff’s illness arose from a reasonable fear of injury to him or herself. To put it in simple
words, a right to recover for fright or non-physical injury need not to have a physical impact.
7
[1897] 2 Q.B. 57
8
[1991] 2 KB 316
9
Tort Liability for Psychiatric Damage (1993) p 307
10
[1901] 2 KB 669

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Subsequently, actual physical injury need not to occur but there must be reasonable
apprehension or fear of physical injury being inflicted. In Hambrook v Stokes Bros11
, a mother
suffered psychiatric injury when she saw a runaway lorry going down a hill and round a bend, where
she had just left her three children who were walking to school. She did not see the collision but
feared that the lorry may have injured her children. Later, someone told her there had been an
accident with one of the children involved turned out to be her daughter. She miscarried and
eventually died from the shock suffered. Recovery was permitted to her husband pursuant to
provisions in Fatal Accidents Act 1846 (UK)12
. In this case, the question that arose was could a
bystander, who witnessed an accident causing injury to another, recover damages? To think of it, it
was absurd for not compensating a mother who suffered psychiatric harm as a result of fearing her
child’s safety when on the other hand, another mother could succeed if not thinking about her
children but only frightened for her own safety. And in Dooley v Cammel Laird & Co 13
, where a
crane driver successfully claimed for nervous shock when he saw a load fall and thought that
workmates underneath would have been injured. One restriction on this development was to prevent
a party from recovering who was not within the area of impact of the event. So, in King v Phillips14
[1953] 1 QB 429, a mother suffered nervous shock when from 70 yards away she saw a taxi reverse
into her small child’s bicycle and presumed him to be injured. Her claim failed because the court’s
view was that she was too far away from the incident and outside the range of foresight of the
defendant.
Moreover, in all claims for psychiatric damage, the claimant must ensure that what he or she
suffers is a medically recognised psychiatric illness or shock induced psychical condition cause by
sudden shock. Personality disorder15
, post- traumatic distress disorder (PTSD)16
, miscarriage17
and
11
[1925] 1 KB 141
12
Fatal Accidents Act 1846 (UK).
13
[1951] 1 Lloyd’s Rep 271,
14
[1953] 1 QB 429,
15
[1967] 2 ALL ER 945
16
[1999] 1 ALL ER 215
17
[1942] 2 ALL ER 396

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pathological grief18
are examples of the medically recognized condition. On the other hand,
distress19
and fear20
is not a medically recognized condition as it is a normal emotion. In Hale v
London Underground21
[1992] ii BMLR 81, a fireman was able to claim successfully or Post
Traumatic Stress Disorder that he suffered following the King’s Cross fire in central London, though
bystanders who suffered shock at the scene of disasters will not be held successful. See for example
McFarlane v EE Caledonia22
[1994] 2 All ER, where a person who helped to receive casualties
from an oil rig fire failed in his claim because he was classed a mere bystander rather than a rescuer
at the scene.
After identifying what exactly the claimant suffers, it is necessary to prove that the defendant
owed the claimant a duty of care. However, in psychiatric damage, the element of duty of care is
hard to prove. The court faced problems of determining how wide the scope psychiatric cases. The
categorization of the plaintiffs in psychiatric illness cases into primary and secondary victims is in
the leading case which is Page v Smith23
, a case of pure psychiatric damage. In this case, the plaintiff
was involved in a minor car accident caused by the defendant’s negligence. House of Lords held
that if the defendant’s tort created a foreseeable risk that plaintiff would suffer bodily injury,
defendant can be held liable for nervous shock suffered by the plaintiff even if it is so abnormal a
reaction to the tort that it could be described as ‘unforeseeable’, and even if, in fact, the plaintiff
suffered no bodily injury. There was a duty owed by the defendant to the plaintiff. Besides, plaintiff
was a primary victim because he was involved in the accident. Lord Lloyd in his judgment:
“A primary victim is someone was in the actual area of danger or reasonably believed he was in danger. A
secondary victim is someone who witnesses injury to another or fears for the safety of another.”
18
[1986] 1 ALL ER 54
19
[1983] 1 AC 410
20
[1992] ALL ER 65
21
[1992] ii BMLR 81
22
[1994] 2 All ER
23
[1996] AC 156

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Primary victims are owed a duty of care in relation to pure psychiatric damage, if the risk of
physical injury was foreseeable. In addition, for secondary victims there are few requirements where
the claimant is the victim. The situation for this category is where D’s negligence causes injury to
B (or puts in danger of injury) and C (who is neither injured nor in danger) suffers shock because
of the incident. In short, the claimant is a witness of danger to others. This can be seen from the
case of Alcock v CC South Yorkshire 24
, there are four criteria that need to be fulfilled. First, a close
tie of love and affection to a primary victim. Second, witness the event with their own unaided
senses. Third, the proximity to the event or its immediate aftermath and fourth, the psychiatric injury
must be caused by a shocking event.
Moving on, in discussing the Malaysian cases with regards to this psychiatric illness issues,
in the case of Zainab Binti Ismail v Marimuthu & Anor25
,as a result of the defendant negligently
driving at a speed and also recklessly which was proved, the plaintiff's daughter was killed while
washing clothes at a stand pipe in the side street. The evidence showed that the plaintiff saw the
accident and she suffered from shock and was still sick nearly two years after the accident. The
plaintiff claimed damages for shock and illness, and for loss of expectation of life of the deceased
arising out of the negligence of the defendant. The judge in this case quoted:
“I think it is worth repeating here a part of sect;964 from the Current Law Year Book, 1953, which reads as
follows:—"Shock — mother seeing accident to child. The test of liability for shock is foreseeability of injury
by shock. But this test is by no means easy to apply. The test is not what the negligent party himself could
reasonably have foreseen, for he rarely has time to foresee anything. The test is what a hypothetical reasonable
observer could reasonably have foreseen. It is difficult to decide where the line is to be drawn. As Lord Wright
observed in Bourhill v. Young, infra, the line is to be drawn only where "in the particular case the good sense
of the judge decides.–
Per Denning L.J.: "The true principle, as I see it, is this: Every driver can and should foresee that, if he drives
negligently, he may injure somebody in the vicinity in some way or other; and he must be responsible for all
24
[1992] 1 A.C. 310
25
[1955] 1 MLJ 22

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the injuries which he does in fact cause by his negligence to anyone in the vicinity, whether they are wounds
or shocks, unless they are too remote in law to be recovered. If he does by his negligence in fact cause injury
by shock, then he should be liable for it unless he is exempted on the ground of remoteness.”
Thus, the judge decided by his good sense which the very manner of its driving along a quiet
and somewhat unfrequented street is likely to cause the residents along this road to look out to see
any accident that might occur. Applying the test of what a hypothetical reasonable observer could
reasonably have foreseen, he came to the conclusion that the defendant cannot be exempted from
liability for shock to the plaintiff on the ground of remoteness. Besides, the relationship here is
parent and child, for which there exist presumption of closeness, love and affection. Hence, the
plaintiff is entitled to recover damages.
Then, in the case of Jub'il Bin Mohamed Taib Taral & Ors v Sunway Lagoon Sdn Bhd26
, the
deceased died as a result of injuries sustained after she had fallen off a train at the defendant's theme
park. The first plaintiff (SP1) was the deceased husband and the second and third plaintiffs were
her children, aged eight and five years of age at the time of her death. The issues that we are
discussing about is whether the plaintiff can claim damages for nervous shock. The test established
in McLoughlin v O'Brien 27
for determination of liability in respect of nervous shock is the
requirements of a close relationship, proximity of a tortious event and how the shock was caused.
In the instant case, the requirement of a close relationship had been satisfied as SP1 and the deceased
were husband and wife. Regarding the other requirements, SP1 was seated next to the deceased on
the runaway train and witnessed how the deceased was flung out of the train and fell to the ground
and he saw the injuries sustained by deceased. Therefore, a sum of RM5,000 was awarded in respect
of the chronic posttraumatic stress disorder suffered by SP1 from 20 November 1997 till 21 May
1998 as he has fully recovered after this date. In respect of the second plaintiff's claim for nervous
shock, the reports from the counsellor at the Public Services Department did not show that the
26
[2001] 6 MLJ 669
27
[1983] 1 AC 410

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second plaintiff was suffering from any psychiatric illness and therefore, his claim for nervous shock
was disallowed.
Next, in the case of Thiruvannamali a/l Alagirisami Pillai lwnDiners Club (M) Sdn Bhd28
,
the plaintiff, a medical doctor was a member of the Diners Club. The employees of the defendant
mistakenly changed the status of the plaintiff to the account of Diners Club members who had
passed away which was supposedly done on another account. The plaintiff's wife was shocked when
she received a condolence letter on the death of her beloved husband while she was at her home.
The plaintiff subsequently sued the defendant for shock, fear and mental anguish. The judge had
also referred to case of Page v Smith [1996] where the House of Lords held as follows:
"... it is necessary at the outset to particularize what is meant by 'nervous shock' such as may result in liability
for damages. The decided cases indicate that it means a reaction to an immediate and horrifying impact,
resulting in some recognizable psychiatric illness. There must be some serious mental disturbance outside the
range of normal human experience, not merely the ordinary emotions of anxiety, grief or fear."
The court held that ordinary emotions of shock, fear and mental anguish is not sufficient to be
considered as psychiatric illness to make the defendant liable. Hence, the plaintiff failed to claim
damages.
In addition, to affirm this, in the case of Dato' Thirumoorthy a/l Nadesan v Maxis Mobile
Services Sdn Bhd29
, the plaintiff claims against the defendant for damages arising out of the alleged
negligence of the defendant in connection with the registration of a prepaid number in the plaintiffs
name to a third party where the third party had sent threatening SMSes to the plaintiff himself. The
plaintiff alleges that the adverse consequences which he had suffered as a result of receiving the
four SMSes are "kejutan, kemurungan, tekanan dan paranoid".
28
[2007] 1 MLJ 240
29
[2012] MLJU 76

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The court held that mere mental suffering is not sufficient and not an actionable tort that
could be compensated by damages. Thus, this shows that this case is an agreement with
Thiruvannamali a/I Alagirisami Pillai v Diners Club.
Besides, in a recent case of Mohan a/l Selvakumar v Arshad bin Salleh30
, according to the
plaintiff, he was riding motorcycle from his house to the mosque for Friday prayers. When he was
about two to three lamp-post away from the mosque, he gave a signal to turn right into the mosque,
kept to the centre of the road immediately before making the right turn and then made the right turn
when he saw there were no oncoming vehicles from his front and rear. Suddenly the defendant came
from behind and collided into him. The learned Sessions Court Judge also made a finding that the
plaintiff was not suffering from any psychiatric illness, thus a separate award for psychiatric issues
as a result of the head injury was not allowed as it has been considered when the award for the head
injury was given. However, in this present judgment, an award for psychiatric issues should be
made separately from the award for head injury because on the balance of probabilities, the judge
is satisfied that the injuries are the cause for the decline in the plaintiff’s performance at work. The
psychiatric issues are present and supported by the various medical and specialist reports. Hence,
the judge allows the sum of RM50,000.00 as a fair and reasonable sum for the psychiatric issues.
As a conclusion, we acknowledged what Lord Hoffman said in White v Chief Constable of
South Yorkshire31
suggesting ‘the search for principle’ in this area of the law has been ‘called off’.
Truly, it is simply hard to came upon a solution for this issue. The House of Lords in that case
viewed the law as so far beyond judicial repair that the only sensible maxim to adopt was ‘thus far
and no further’. Despite such statement, judiciary bodies should not stop trying and figuring out a
new module to identify and solving psychiatric illness related cases. Therefore, it is fair to say that
30
[2017] MLJU 1662
31
[1999] 2 AC 455

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the law in Malaysia related to this issue is far from satisfactory. At this time, our law should have a
proper guideline concerning psychiatric illness problems. The previous cases as mentioned above
was solely based on facts of the case basis. While the cases may consider the best interest in the
party to the suit, it tends to create difficulties in future cases; the courts should have a proper
precedent to refer to and this will at the end, assist the court and the judiciary themselves.
Given the stage of development of the common law on liability for negligently inflicted
psychiatric illness, the issue for Malaysia is whether it is necessary to consider legislative reform of
the law as what has been undertaken in countries like Australia or as proposed in England. There
are very few successful claims at common law for psychiatric illness – a handful in Australia and
England, and one in neighbouring Singapore. This area has attracted more attention than recovery.
Legislative reform of the law, at this stage of its development, when the medical and legal
knowledge is not sufficiently mature, may interrupt the proper development of the law on an
incremental case-by-case basis and may give rise to legislative recovery in certain areas of
psychiatric illness that could, on implementation, prove to be more generous than envisaged.
In discussing cases, recovery for psychiatric injury (nervous shock) for a secondary victim
should also be recognized for claim. It is strongly urged to remove the requirements for secondary
victims to show proximity in time and space, and that the events have been witnessed by the
plaintiff’s own unaided senses. The Law Commission Act (England) acknowledged that for the
critics of the fault-based tort system only a wholesale reform of the current compensation system
would render it fairer and more efficient and that, for them, enhancing the recovery of psychiatric
illness would merely favour the already privileged minority of accident victims. The Commission’s
mandate was, however, only to improve the existing system and not to replace it by other alternative
non-fault systems.

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RECOMMENDATION
The requirements of “direct perception of the accident or its immediate aftermath” and
“sudden shock” before a so-called secondary victim can recover damages have attracted serious
academic criticism32
.They serve only to put an arbitrary limit on the number of claims that can be
successfully made. In addition, it has no support from the perspective of psychiatry. It would
perhaps be better for that limit to be based on the severity of the harm suffered by the claimant or
the culpability of the defendant’s conduct, or some similar factor related to justice. The injury should
be accepted even where it is not caused by a sudden traumatic event. These proposals are much
fairer, and it is fervently submitted the Malaysian judiciary should seriously consider them33
.
Although we do not think that legislation on the point is appropriate, we tend to the view
that, where the plaintiff suffers psychiatric illness due to death, injury or imperilment of another,
the reasonable foreseeability of the plaintiff’s psychiatric illness should not always be judged with
hindsight. In assessing whether the psychiatric illness was a reasonably foreseeable consequence of
the defendant’s conduct, the court should consider whether the harm or imperilment to the
immediate victim (that is the “accident”) was, judged prior to the accident, reasonably foreseeable.
Law Commission’s proposed legislation should adopt the method of imposing a statutory duty of
care to avoid psychiatric illness (with its elements positively spelt out in the statute) for the purposes
of the tort of negligence. The legislation should lay down a fixed list of relationships where a close
tie of love and affection shall be deemed to exist, while allowing a plaintiff outside the list to prove
that a close tie of love and affection existed between him or herself and the immediate victim.
Having such recommendation based on the Law Commission Act, Malaysia should step up
and create a proper guideline based on the facts underlined to untangle the issue of psychiatric
illness in Malaysia. Hence, we propose a more thorough comparative legal study in this area.
32
(1998) 61 MLR 849
33
Akram Shair Mohamed (2017)

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BIBLIOGRAPGHY
TABLE OF CASES
ENGLISH CASES
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310
Atria v British Gas Plc [1988] QB 304
Bourhill v Young [1942] 2 ALL ER 396
Chadwick v British Transport Commission [1967] 2 ALL ER 945
Dooley v Cammel Laird & Co [1951] 1 Lloyd’s Rep 271
Hale v London Underground34
[1992] ii BMLR 81,
Hambrook v Stokes Bros [1925] 1 KB 141
Hicks v Chief Constable of South Yorkshire [1992] ALL ER 65
I de s et ux v W de s YB 22 Edw III, f 99, pl 60 (1348) cited in, eg, HW Smith
Jaensch v Coffey (1984) 155 CLR 549
Janvier v Sweeney [1991] 2 KB 316
King v Phillips [1953] 1 QB 429
Kralj v Mcgrath [1986] 1 ALL ER 54
Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 ALL ER 215
McFarlane v EE Caledonia35
[1994] 2 All ER
McLoughlin v O'Brien [1983] 1 AC 410
Page v Smith [1996] AC 156
White v Chief Constable of South Yorkshire [1999] 2 AC 455
MALAYSIAN CASES
Dato' Thirumoorthy a/l Nadesan v Maxis Mobile Services Sdn Bhd [2012] MLJU 76
Jub'il Bin Mohamed Taib Taral & Ors v Sunway Lagoon Sdn Bhd [2001] 6 MLJ 669
Mohan a/l Selvakumar v Arshad bin Salleh [2017] MLJU 1662
Thiruvannamali a/l Alagirisami Pillai lwnDiners Club (M) Sdn Bhd [2007] 1 MLJ 240
Zainab Binti Ismail v Marimuthu & Anor [1955] 1 MLJ 22
34
[1992] ii BMLR 81
35
[1994] 2 All ER

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BOOKS
Azlan, A., & Mohsin, H. (1999). Principles of the law of tort in Malaysia. Kuala Lumpur: Malayan
Law Journal.
H, Steve. (2000). Tort, (2nd ed.) United Kingdom:Butterworths, 73-79.
Mullnuy and Handford. (1993). Tort Liability for Psychiatric Damage.
Murphy(1996) Negligently Inflicted Psychiatric Harm: A Re-Appraisal, 15 LS 145.
Norchaya, T. (2010). Law of torts in Malaysia. Selangor: Sweet & Maxwell Asia.
Richard, K. (n.d) Case Book on Torts (11th ed).
Teff (1992). Liability for Psychiatric Illness after Hillsborough. OJLS 440.
ACTS
Fatal Accidents Act 1846 (UK)
Law Commissions Act 196
CONFERENCE PAPER
Mohd Akram Shair Mohamed, Farheen Baig Sardar Baig (2017).”Defendants Negligence Causing
Nervous Shock Or Psychiatric Injury To Plaintiff/Claimant: A Critical Appraisal”. Proceedings
of INTCESS 2017 4th International Conference on Education and Social Sciences, Istanbul,
Turkey.