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DUTY OF CARE (SPECIFIC) (Psychiatric harm (*Ngiam Kong Seng (Ngiam got…
DUTY OF CARE (SPECIFIC)
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Psychiatric harm
McLoughlin
To place limitation, 3 elements inherent in any claim must be considered: class of persons whose claims should be recognised; proximity of such persons to accident; means by which the shock is caused.
To insist on direct and immediate sight or hearing would be impractical and unjust. Those who, from close proximity, comes very soon upon the scene should not be excluded. Direct perception of some events which go to make up the accident as an entire event, and this includes the immediate aftermath.
Alcock
McLoughlin #1: whether claimant has established so close a rs of love and affection to the victim as might reasonably be expected in the cases of spouses / parent-child. McLoughlin #2 & 3: claimant who watches normal tv prog which displays live events does not satisfy proximity.
Page v Smith
McLoughlin and Alcock secondary victim. Here plt was directly involved, within range of foreseeable physical injury. Pri victims must show physical harm foreseeable.
Sec victim: psychiatric injury must be foreseeable in a person of normal fortitude. Test for pri victim: can def reasonably foresee that his conduct will expose the plt to risk of personal injury, whether physical or psychiatric (general)? Injury does not have to occur. Must also be recognised psychiatric illness.
Pang Koi Fa
Mother observed slow painful death of daughter arising from negligent brain operation, PTSD. Means by which injury caused? Plt's continuous presence of dying daughter in aftermath of operation.
*Ngiam Kong Seng
Ngiam got into accident, dependent on wife Quek. Lim was driving the taxi that caused the accident, but represented to Quek to be a helpful bystander. Later found out --> depression and suicidal tendencies.
Sorrow and grief are just part of vicissitudes of life. Need expert evidence before court, which retains responsibility to ensure such evidence is defensible as well as grounded in logic and common sense. Spandeck approach, but with additional recognisable psychiatric illness threshold to be established by independent psychiatrist. McLoughlin factors for proximity. Pri-sec victim distinction not accepted in SG.
McLoughlin #1: spousal, closest ties. #2: closeness in space and time. #3: no case in the law where shock brought about by communication by 3rd pty is compensated. Policy: militate against finding DoC
FF: 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 stretch too much. But in certain situations where information was communicated might, perhaps, result in the foreseeability of harm.
Man Mohan Singh
Pathological grief disorder may not be recognised. FF: driver not expected to know victims would constitute all children, that parents of any particular age with any particular medical condition ... Proximity: 2nd and 3rd McLoughlin factors not present.
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Misstatements (economic)
Hedley Byrne
Plt requested for financial condition of E from its bank, who in turn enquired def bank Heller. E liquidated. There was disclaimer clause, but if not, HL said there would be DoC.
Skill and judgement of maker of statement, whether maker knows / ought to have known it'll be relied on (yes reasonable to know so), whether maker assumes responsibility for making statement.
Go Dante Yap
Bank-customer rs, communications likely important. Foreseeable that if bank did not exercise due care in account-opening documents, client would suffer loss. Implied duty.
Bank assumed client's money and assets were under its control, and on whose behalf it was expected to invest. Bank held out to possess expertise, and knew client placed implicit reliance on that expertise.
Smith v Eric Bush
Proximity: A valuer instructed by a prospective mortgagee to carry out a valuation owed a duty of care to the mortgagor if aware that the plt would purchase the house in reliance on the valuation without an independent survey, unless the valuer had made a disclaimer of liability
Policy: Not fair and reasonable to allow the valuer to rely on such a disclaimer. Most buyers rely on valuation to reveal any obvious serious defects.
Caparo v Dickman
Liability for economic loss due to negligent misstatement confined to cases where statement given to known recipient for specific purpose which maker was aware and upon which the recipient had relied and acted to his detriment.
Anwar Patric Adrian
AoR principle established in Hedley Byrne inapplicable in this kind of cases. Cannot say solicitor undertook responsibility to 3rd pty to take care in giving advice to client, which potentially benefits 3rd pty associate of client.
FF: Yes, if Ng failed to take care in advising Angus of contents, appellants will suffer loss.
Proximity: Implied retainer general have proximity. Even if no, there is relational / circumstantial and causal proximity. Instructions from client had effect on 3rd pty, he would have brought himself into direct rs with the 3rd pty, even if the latter did not have personal knowledge of transaction.
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AEL
Claim Cheo's negligence in ensuring proper execution of will. FF: yes, reasonable solicitor in Cheo's position would foresee possibility of loss if he were negligent in discharging his undertaking to Testator.
Proximity: Relational / circumstantial (Cheo knew if Testator's instructions not properly carried out, economic well-being of pls would be affected). Causal (plts' entitlements wholly dependent on will being effective, and that is entrusted to Cheo. Also "control" on part of Cheo and "vulnerability" of plts - strengthen proximity.
No policy to negate, only affirm.
Relational economic loss
Where def damages a physical interest owned by X, which in turn causes financial loss to plt who depends on continued integrity of that physical interest.
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