Adli was driving his van to the market when he had to swerve to

avoid a pedestrian. His van knocked into a group of children and

their teachers while they were being interviewed live on
television during a news bulletin. All the children were horribly
mutilated. Colin, one of the teachers, was crushed up against a
wall by the van and died within 5 minutes. Siva, a sound
technician of nervous disposition, was shocked by the events and
later began to suffer from acute anxiety. Jenab, the blind aunt of
one of the children involved, was sitting in her living room having
tea with her neighbour whilst the scene was being broadcast on
her television. Her neighbour described the events to Jenab as
she watched them occur on the set. Jenab was shocked by what
she was told and was so upset that she later had to give up work.
Mary, Colins girlfriend and the mother of his two children,
became increasingly depressed as a result of a constant
reflection upon the incident.

Advise Adli of the issues likely to be raised in any action based on

negligence against him arising from those events.

(30
marks)
 There are four elements that make up the vehicle for negligence in
Torts; duty of care, breach of duty of case, causation, and damage. These
particular elements must be established predominantly before the inquirer
can claim for compensation against the tortfeasor. The degree in which
the courts are wary to impose a duty of care is the scope of psychiatric
illness.

Subsequently, the issue arises in this case is whether or not the

significant parties are liable for to compensate for psychiatric illness
based on negligent caused by Adli.

In the case of Alcock v Chief Constable of South Yorkshire

Police, Lord Ackner define psychiatric illness as a sudden appreciation
by sight or sound, of a horrific event, which violently agitates the mind.
Psychiatric illness only concerns the nervous shock of the ones state of
mind causing from a horrific event.

There are two types of victim revolve in psychiatric illness; primary

victim and secondary victim. The first victim is the one that is personally
involved with the accident and also among the rescuers. As laid down in
the case of Dulieu v White & Sons (1901), the court held that the
plaintiff was liable as primary victim when the defenndant who drove a
van recklessly until he crashed into a public bar causing the defendant
who was serving drinks and who was pregnant, suffered shock which
resulted in a miscarriage. Also, in the case of Hale v London
Underground Ltd (1993), the defendants were held liable for
psychiatric illness sustained by the plaintiff who assisted in the rescue
operations during a fire at a London underground train station. The
secondary victim is the one that witnessed the accident but not actively
involved. There are then elements of psychiatric illness where the primary
victim needs to fulfil 3 of the test beforehand, and the secondary victim
needs to fulfil 3 and another 3 additional test.

In this present case, Siva, Jenab, and Mary are the secondary victims as
they did not involve personally and actively with the accident.

The first element that needs to be looked into account is the

element of negligence itself as mentioned in the first paragraph. This
element inquired whether or not the tortfeasor owned any duty of care,
breach that duty of care, and due to the breach he has cause of action,
which resulting to damage. In the case of Donoghue v Stevenson, Lord
Atkin held that the defendant owned duty of care towards the plaintiff and
the court then applied the neighbour principle which put forward the
foreseeability test (whether the act or omission is reasonably foreseeable
to injure the Plaintiff) and the proximity test (the closeness of the
relationship and how the party is directly affected to the Defendants act).

In this present case, Adli might fulfil the first test as the victims are his
neighbour and it is reasonably foreseeable that if he did not drive
properly, he would jeopardize his neighbour. However, he can prove to the
court that he did take reasonable precautions and shall not be perceived
any below of the standard of care as a driver since the accident occur only
due to his conduct of swerve to avoid a pedestrian.

Secondly is the element of reasonably foreseeable to suffer

psychiatric illness. In the case of Bourhill v Young, the court held that
even though she suffered a miscarriage through the shock of seeing the
aftermath of a road accident, she was not within the area of the scene
(she was at a tramp during the accident). Thus, the defendant owned her
no duty of care as it was too remote to foresee the psychiatry injury.

In contrast with the present case, Adli must aware that it is reasonably
foreseeable for the parties to suffer from psychiatric illness since it is not
remote to foresee the parties suffered for psychiatric illness. Therefore,
the second element is established.

The third element is the medically recognized psychiatric illness. In

the case of Thiruvannamai a/l Alagirisami Pillai v Dinners Club
(2007), the court put upon that the mental anguish must be a kind which
is medically recognised. Also, to elaborate and illustrate further, in the
case of Jubli Mohd Taib v Sunway Lagoon, the court acknowledged the
fathers medical evidence granted by a psychiatric illness while the
childrens medical evidence by a counsellor is not presumed or accepted.
Therefore, there is a need to earn medical evidence by either doctors or
psychiatrists.

Adli needs to know that the parties would most likely to seek for medical
evidence by authorized doctor or psychiatrist and once they have it, the
third element of psychiatric illness would be established.

The fourth element is the familial test where the parties need to
prove to the court that they share close emotional ties with the victims. In
the case of Alcock v Chief Constable of South Yorkshire Police, the
court only presumed four relationships of closeness, love, and affection;
parents and children, husband and wife, grandparents and grandchildren,
and engaged couples. Furthermore, in the case of Zainab Ismail v
Marimuthu & Anor, the court allowed the Plaintiffs claim for nervous
shocked as a result of seeing her daughter knocked down by a lorry.
However, there is an exception to familial test and this is when a plaintiff
(a stranger to the victim) who does not fall among the presumed
relationships can still nevertheless claim if he can prove to the court that
he has witnessed an exceptionally horrifying accident. For instance, in the
case of Dooley v Cammell Laird & Co Ltd, the Plaintiff who witnessed
an exceptionally horrifying incident of the plummet of the crane upon his
workers was held liable to compensate for psychiatric illness.

In the present case, Jenab and Mary might able to prove to the court that
they share a close emotional tie with the victims. For Siva, he might be
able to prove to the court that he had witnessed an exceptionally
horrifying accident. Therefore, Jenab and Mary might pass the familial
test, and Siva might pass the exception of the test.

Fifth test is the temporal test which is the proximity time of the
accident or the immediate aftermath. In the case of Mchloughlin v
OBrian, it is known that 2 hours is ratified as immediate aftermath while
in the case of Alcock v Chief Constable of South Yourkshire Police, 8
hours is not approved.

In this present case, Siva was there during the accident while Jenab and
Mary were not. Thus, Siva might pass this temporal test while Jenab and
Mary need to prove to the court that they were there during the
immediate aftermath.

The sixth test is the spatial test where must witnessed the accident
with his unaided senses. In the case of Boardman v Sanderson where
the court allowed the claimant, the father (plaintiff) of the victim suffered
from nervous shock as he heard the screams of his son when the
defendant ran over the victim by car when he was within earshot.
Furthermore, in the case of Alcock v Chief Constable of South
Yorkshire Police, the court held that television is an aided sense.

In the present case, Siva did witness the accident with his own eyes and
heard with his own ears. Siva might pass the test. Jenab and Mary on the
other hand did not manage to fulfil the said test.

As a conclusion, Jenab and Mary might not able to claim for

psychiatric illness as they have failed to fulfil several elements. As for
Siva, he might able to claim psychiatric illness as he has established all of
the tests. Although so, Adli might stand a chance to escape for liability if
he can prove to the court that he did not drive negligently, that he took
reasonable precautions as a driver, and he shall not be perceived any
below the standard of care as a driver since the accident occur only due to
his conduct of swerve to avoid a pedestrian.

TRY SET TIME. NOT MORE THAN 45 mins-55 mins. If got more
time, include duty of care of driver. Causation and damage.