Client Update June 2008

Transcription

1 Highlights Relevance Of This Update Introduction Facts Of The Case High Court Ruling...2 The Decision Of The Court Of Appeal Foreseeability Of Damage Proximity The Class Of Persons Whose Claims Should Be Recognised Proximity To The Accident (Tortious Event) The Means By Which The Psychiatric Illness Was Caused Public Policy Considerations Concluding Words...5 Duty Of Care In Cases Of Psychiatric Harm Relevance Of This Update The Singapore Court of Appeal in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR 100 ( Spandeck ) set out the applicable test in Singapore for ascertaining the existence of a duty of care in cases involving claims for pure economic loss and cases involving claims for physical damage. The Court in that case ruled that a single test to determine the existence of duty of care should be applied in negligence, regardless of the damage caused (ie pure economic loss or physical damage). It stated that the single test would be a two-stage test of, first, proximity, and, second, policy considerations. The Court, in Ngiam Kong Seng and Another v Lim Chiew Hock [2008] SGCA 23 ( Ngiam Kong ), has moved towards the ideal envisioned in Spandeck of having a single test to determine the duty of care in all claims arising out of negligence, irrespective of the type of the damages claimed. The landmark case of Ngiam Kong centered on the applicable principles for ascertaining the duty of care in cases involving psychiatric illness or nervous shock (collectively referred to as psychiatric harm ). Quentin Loh SC of Rajah & Tann LLP successfully defended the respondent in the Ngiam Kong case. Introduction Ngiam Kong was an appeal against the decision of the Trial Judge in Ngiam Kong Seng v CitiCab Pte Ltd [2007] SGHC 38 ( SGHC ) who dismissed the appellants claims for damages. In rendering its decision, the Singapore Court of Appeal reiterated its ruling in Spandeck that courts should adopt a single test in determining the existence of duty of care in claims arising out of negligence, irrespective of the damage caused. Facts Of The Case The first appellant, N, while riding a motorcycle towards Ang Mo Kio, was involved in a traffic accident which was allegedly caused by the respondent, L, who was then driving a taxi. The second appellant, Q, was the wife of N. As a result of the accident, N sustained severe injuries which rendered him a tetraplegic. During the period following the accident, L represented himself to be a helpful bystander who had rendered assistance to N. All this while, L did not tell Q that he was the driver of the 1

2 Contacts Quentin Loh SC Partner Direct: (65) Facsimile: (65) taxi which was involved in the accident. Q was later told that L had been involved in the accident. Thereafter, Q suffered from major depression resulting from, as alleged by her, having been betrayed by L. N and Q subsequently commenced an action in negligence against the taxi company and L. The claim against the taxi company was, however, withdrawn before the trial in the High Court. It was argued by N that the collision was caused by L s negligence consisting of, inter alia, driving at an excessive speed and failing to maintain a safe distance from N s motorcycle. Q, on the other hand, alleged that she had suffered from clinical depression as a result of L s failure to inform her of the severity of N s injuries and of L s involvement in the accident. Q also contended that the depression was a result of L s conduct in causing her to believe that he was a helpful bystander when the accident happened. High Court Ruling The Trial Judge dismissed N s claim, stating that L was not negligent in his driving of the taxi. [N] fell onto the road of his own accord when the motorcycle skidded after he lost control. The motorcycle then hit the taxi on the taxi s left side before it fell onto its right side [SGHC at 91]. The Trial Judge was of the view that Q s case hinged on N s case. Thus, since N s claim had been dismissed, it must follow that Q s case must similarly fail. It was also held that even if L had been found to be liable to N, the Trial Judge would still dismiss Q s claim on the grounds, inter alia, that the claim had no basis in law and was too remote. The Trial Judge said that Q must satisfy the three elements laid down by Lord Wilberforce in McLoughlin v O Brien [1983] AC 410 ( McLoughlin ) as follows: the class of persons whose claims ought to be recognised; the proximity of such persons to the accident; and the means by which the psychiatric illness was caused. Please feel free also to contact the Knowledge & Risk Management Group at eoasis@rajahtann.com. The tests were reiterated by the House of Lords in Alcock & Others v Chief Constable of South Yorskshire Police [1992] 1 AC 310 and followed by the Singapore courts in Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317. It was held by the Trial Judge that a claim for damages for nervous shock was not actionable unless the nervous shock had been caused by the claimant actually seeing or hearing the relevant event or its immediate aftermath. The Trial Judge then held that while Q satisfied the first element, she failed on the second and third criteria. 2

3 The Decision Of The Court Of Appeal On appeal by N and Q, the Court of Appeal held that the Trial Judge did not err in arriving in her decision that L was not responsible for N s injuries. The Court also found that L owed no duty of care to Q. The appeal was thus dismissed. The decision in this case centered on the applicable principles for ascertaining the duty of care in claims involving psychiatric harm. As stated above, the Trial Judge adopted the three elements in McLoughlin in order to determine the liability of a respondent in claims for damages for nervous shock. The Court noted that Lord Wilberforce s statements of principle in McLoughlin are consistent with what the Court decided in Spandeck to the extent that the three elements set out above are an integral part of the first stage of the two-stage test enunciated in Anns v Merton London Borough Council [1978] AC 728 ( Anns ). Note that Anns formed the basis of the two-stage test laid down in Spandeck (ie proximity as the first stage, and public policy consideration as the second stage). Foreseeability Of Damage The Court observed that the only possible conduct in respect of which L could arguably be said to owe a duty of care to Q would be his communication of information relating to N s accident. The Court then examined the facts of the case vis-à-vis the two-stage test laid down by the Court in Spandeck. It is said that reasonable foreseeability of the damage or injury suffered is a preliminary threshold requirement which a plaintiff in a negligence action must satisfy. The Court was of the view that this requirement was not satisfied in the instant case. It said: To hold that it is reasonably foreseeable that the mere communication of the information in question without more could result in harm to a party boggles the imagination and stretches the realms of reality. Proximity On the assumption that L could establish the requisite factual foreseeability, the Court proceeded to consider the three elements set out in McLoughlin in relation to the issue of proximity which constitutes the first stage of the two-stage stage test adopted in Spandeck for the sake of completeness. The Class Of Persons Whose Claims Should Be Recognised The requisite relational proximity existed in the instant case. The Court ruled that the presence of a spousal relationship between N and Q supported the view that L did owe Q a duty of care. 3

4 Proximity To The Accident (Tortious Event) The Court explained that generally, claims in negligence for damages for psychiatric harm usually arise in accident situations. An accident is said to be the tortious event which caused the claimant to suffer psychiatric harm. In the instant case, however, the alleged tortious event was the communication of the information from L to Q, and not the accident itself. If it were the latter, it was clear that L was not physically proximate to the alleged tortuous event. The Means By Which The Psychiatric Illness Was Caused The Court first explained the traditional view in relation to the means by which psychiatric harm is caused. As stated by Lord Wilderforce in McLoughlin, [t]here is no case in which the law has compensated shock brought about by communication by a third party The shock must come through sight or hearing of the event or of its immediate aftermath. The Court also quoted Windeyer J in the Australian High Court decision of Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 who declared that no action lies against either the bearer of bad tidings and that [t]here is no duty in law to break bad news gently or to do nothing which creates bad news. Cases where the courts have departed from the traditional view vis-à-vis situations where communication of information led to psychiatric harm were then considered. One of the cases cited was Wilkinson v Downtown [1897] 2 QB 57 ( Wilkinson ) where the defendant falsely and maliciously represented to the plaintiff that her husband had been seriously injured. The plaintiff developed psychiatric hard and filed a case against fro damages for the injury she had sustained. The court held that the plaintiff should succeed. After referring to the case, the Court said that it was of the view that Wilkinson is authority for the principle that wilfully communication false information is actionable if it causes physical, including psychiatric, harm. In the present case, however, the Court noted that there was no intention to cause harm, much less the type of harm that [Q] complained of. From the foregoing, the Court ruled that L did not satisfy the requirement of proximity which constitutes the first stage of the two-stage approach adopted in Spandeck. Public Policy Considerations In so far as the second stage of the two-stage approach is concerned, the Court said that this involves considering whether, in the specific context and factual matrix of a given case, there are public policy factors that would entail the courts not imposing a duty of care even if there is otherwise sufficient proximity between the plaintiff and the defendant pursuant to the analysis carried out under the first stage. If there are no applicable policy factors to negate the existence of a duty of care, then the 4

5 courts will find a duty of care established on the part of the defendant. A breach of this duty would result in liability and the awarding of damages. In the present case, the Court found that considerations of public policy militate against the finding of duty of care on the part of L. The Court further stated that a decision to allow recovery in all situations where communication of information results in psychiatric harm would result in a changed (and more constrained) approach towards the communication of bad news. In this regard, the Court referred to the Australian High Court decision of Tame v New South Wales (2002) 211 CLR 317 where Gummow and Kirby JJ opined that recovery for psychiatric harm caused by the communication of information should be limited to situations where a malign intention on the part of the person communicating the information is present. Concluding Words If you would like more information on the above, please contact Quentin Loh SC, whose contact details appear on the left of page 2, or contact the Knowledge & Risk Management Group at eoasis@rajahtann.com, and we would be happy to assist you. Rajah & Tann LLP is one of the largest law firms in Singapore, with a representative office in Shanghai. It is a full service firm and given its alliances, is able to tap into resources in a number of countries. Rajah & Tann LLP is firmly committed to the provision of high quality legal services. It places strong emphasis on promptness, accessibility and reliability in dealings with clients. At the same time, the firm strives towards a practical yet creative approach in dealing with business and commercial problems. The information contained in this Update is correct to the best of our knowledge and belief at the time of writing. The contents of the above are intended to provide a general guide to the subject matter and should not be treated as a substitute for specific professional advice for any particular course of action as the information above may not necessarily suit your specific business and operational requirements. It is to your advantage to seek legal advice for your specific situation. In this regard, you may call the lawyer you normally deal with in Rajah & Tann LLP or the Knowledge & Risk Management Group at eoasis@rajahtann.com. 5