Court of Appeal · Decided 29 May 2008

Ngiam Kong Seng and Another v Lim Chiew Hock

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[2008] SGCA 23Case no. CA 38/2007

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[1] This was an appeal against the decision of the trial judge (“the Judge”), who dismissed the appellants’ claims for damages (see Ngiam Kong Seng v CitiCab Pte Ltd [2007] SGHC 38) (“the GD”)). We dismissed the appeal and now give the reasons for our decision.
[2] In Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR 100 (“Spandeck”), this court set out the applicable test in Singapore for ascertaining the existence of a duty of care in cases involving claims for pure economic loss (“cases of pure economic loss”) and cases involving claims for personal injuries and/or physical damage (collectively, “cases of physical damage”). The present appeal raises the issue as to what the applicable principles are for ascertaining whether a duty of care exists vis-à-vis cases involving psychiatric illness or nervous shock (collectively referred to as “psychiatric harm” in these grounds of decision).
[3] While the focus of the hearing for the present appeal was on the decision of the Judge as to the question of whether the respondent had negligently caused the first appellant to suffer physical injuries, the second appellant’s claim that the respondent had caused her to suffer clinical depression entailed a consideration of the applicable principles for ascertaining whether a duty of care exists in cases of psychiatric harm.
[4] The first appellant (the first plaintiff in the proceedings below), Ngiam Kong Seng, was the owner and the rider (at the material time) of motorcycle licence plate No AZ 3210 S (“the Motorcycle”). The second appellant (the second plaintiff in the court below), Quek Sai Wah, is the wife of the first appellant. The respondent (the second defendant in the proceedings below), Lim Chiew Hock, was the driver of taxi licence plate No SHA 9997 P (“the Taxi”).
[5] The first appellant, while riding the Motorcycle towards Ang Mo Kio, was involved in a traffic accident (“the Accident”), which was allegedly caused by the respondent (who was then driving the Taxi), on 27 January 2004 at about 3.19pm along the Central Expressway. As a result of the Accident, the first appellant sustained severe injuries which rendered him a tetraplegic. The first appellant is now dependent for the rest of his life on a caregiver – the main caregiver being the second appellant – for activities relating to daily living and mobility.
[6] At the time of the Accident, the first appellant was 61 years old, and was working for the Port of Singapore Authority as an operations supervisor. He was due to retire a year later. The second appellant was 59 years old at the material time.
[7] Both immediately after and during the period following the Accident, the respondent represented himself to be a helpful bystander who had rendered assistance to the first appellant. The second appellant was, accordingly, led to believe that the respondent was a good Samaritan and developed feelings of gratitude towards him. The inquiries by the appellants’ solicitors eventually led to the second appellant being told that the respondent had been involved in the Accident. She subsequently suffered from major depression and suicidal tendencies resulting from, she claimed, having been “betrayed” (see the GD at [12]) by the respondent.
[8] The appellants eventually started an action in negligence against the owner of the Taxi, CityCab Pte Ltd (the first defendant in the proceedings below), and the respondent. The claim against CityCab Pte Ltd was withdrawn before the trial in the High Court. The first appellant alleged that at the material time, the Taxi had collided into the rear of the Motorcycle, causing him to be flung backwards and onto the road. It was argued that the collision had been caused by the respondent’s negligence, which was particularised to include, inter alia, driving at an excessive speed, failing to keep a proper lookout, failing to steer a safe and proper course, and failing to maintain a safe distance from the Motorcycle. The second appellant alleged that she had suffered from clinical depression as a result of:
(a) the respondent’s failure to inform her of the severity of the first appellant’s injuries and of his (the respondent’s) involvement in the Accident; and
(b) the respondent’s conduct in causing her to believe that he had been a helpful bystander at the time of the Accident.
[9] In his defence, it was argued by the respondent that the Accident had not been caused by a collision between the Taxi and the Motorcycle, but had instead occurred after the Motorcycle had “self-skidded”[note: 1]. The respondent was adamant that the Taxi had not hit the Motorcycle, and argued that even if there had been a collision between the two vehicles, it would have taken place after the Motorcycle had self-skidded. The respondent denied that the Accident had been caused or contributed to by his negligence, and argued that it had been caused or contributed to instead by the negligence of the first appellant in riding the Motorcycle. In so far as the second appellant’s claim was concerned, the respondent argued that if the second appellant had indeed suffered the loss, damage and expense alleged, these would have been caused solely or partly by the negligence of the first appellant. The respondent also argued that the second appellant’s claim should fail as she had not witnessed the Accident; nor had she been of sufficient proximity in time or space to the scene of the Accident such as would result in her alleged psychiatric problems.
[10] At the trial, in so far as the appellants’ case was concerned, both appellants testified, along with their eldest son, Ngiam Peng Hong. They also adduced expert testimony from medical practitioners on the mental state of the second appellant. In so far as the respondent’s defence was concerned, the respondent testified, along with an independent witness, his passenger at the material time, Ms Maureen Andrew (“Ms Andrew”), as well as an accident reconstruction expert. The Traffic Police investigating officer who had investigated the case, Staff Sergeant Andy Foo (“Mr Foo”), was also called upon by the respondent to testify as an independent witness. (At the time of the trial, Mr Foo had already resigned from the Singapore Police Force to become an insurance agent.)
[11] Liability was the only issue which had to be determined in the court below. For the first appellant’s claim, the Judge had to consider whether the respondent, on the facts, was “responsible for the first [appellant’s] condition” (see the GD at [74]). This issue was also described as follows (see the GD at [26]):
[12] The Judge found the evidence of the first appellant to be inconsistent with regard to, inter alia, which part of the Motorcycle had been hit and how he had fallen off the Motorcycle. The Judge found the respondent’s evidence, in contrast, to be consistent. Moreover, the evidence of the independent witnesses (Ms Andrew and Mr Foo), as well as other evidence including, inter alia, evidence of the absence of damage to the vehicles concerned supported the respondent’s case. The Judge, accordingly, came to the conclusion that the respondent’s version of the events should be accepted and that the first appellant’s claim should therefore be dismissed (see the GD at [75]–[83]).
[13] In so far as the second appellant was concerned, the Judge was of the view that the second appellant’s case hinged on the first appellant’s case, and, therefore, since the first appellant’s claim had been dismissed, the second appellant’s claim must, as a consequence, fail in limine (see the GD at [87]). The Judge also held that even if the respondent had been found to be liable to the first appellant, the second appellant’s claim would still have been rejected on the grounds, inter alia, that (see the GD at [87]–[90]):
(a) the claim had no basis in law and was too remote;
(b) the depression suffered by the second appellant had been caused by her inability to cope with her new burden of being the first appellant’s primary caregiver, rather than by the respondent’s acts or omissions; and
(c) the claim had merely been an afterthought.
[14] Before this court, the first appellant argued that the decision of the Judge on the facts – that the respondent was not responsible for the Accident – should be overturned. The law on whether an appellate court should overturn a finding of fact by a trial judge is clear and need not be elaborated upon, save to state that a trial judge’s finding of fact must be plainly wrong before it will be overturned by an appellate court. We rejected the first appellant’s arguments on appeal as there was no basis for finding that the Judge’s decision was plainly wrong.
[15] The only witness who firmly testified that the Accident had been caused by the respondent was the first appellant himself. However, there were inconsistencies in his evidence, as correctly pointed out by the Judge. Even if we had disregarded the inconsistencies, more evidence would have been needed to establish the first appellant’s claim on a balance of probabilities as the Motorcycle had (allegedly) been hit in the rear, meaning that the first appellant could not have actually witnessed any collision as he would, in all likelihood, have been looking ahead (thus facing the opposite direction) and not behind at the alleged point of contact between the Motorcycle and the Taxi.
[16] The only other eyewitnesses of the Accident who testified were the respondent and Ms Andrew. Of great significance was the fact that the evidence of Ms Andrew, an independent witness, not only did not contradict the respondent’s evidence, but also did not support the first appellant’s evidence.
[17] Of even greater significance was the lack of objective evidence in support of the first appellant’s case. The Traffic Police accident reports and the post-accident pictures of the Motorcycle and the Taxi revealed that there had been no damage to the rear of the Motorcycle and the front of the Taxi. The only “damage” that the first appellant could point to was a semi-circular black mark (which was described in the appellants’ written submissions as an “imprint”[note: 2]) located on the left side of the Taxi just below the left wing mirror. It was contended that this was proof that the Taxi had struck the storage box at the rear of the Motorcycle (“the rear box”). Having examining photographs of the imprint, we agreed with the accident reconstruction expert’s view, which was in fact consistent with common knowledge of the forces of nature, that it would have been physically impossible for the imprint to have been created by the Taxi hitting the rear box. The shape of the imprint was such that in order for the semi-circular arch to have been created, the rear box must have made contact with the Taxi initially at a point lower than the crest of the curve, with the point or area of contact then going up to the crest before going down again. In other words, the Motorcycle would have had to first fall, make contact with the Taxi, and then rise and fall again. This would be against the laws of gravity. Other than the rear box, only the tyres of the Motorcycle could possibly have caused the imprint on the Taxi, but we found this suggestion implausible. For one, as the accident reconstruction expert testified, the imprint was not consistent with the height of the front wheel of the Motorcycle, based on height measurements taken of that wheel and of the left side of the Taxi. As for the likelihood of the Motorcycle’s rear tyre having caused the imprint, we likewise found this highly unlikely as that tyre was surrounded (or, loosely speaking, “protected”) by protruding objects such as the exhaust pipes, the rear foot rest, the rear box and the rear suspension. If there had indeed been contact between the Motorcycle and the Taxi, these protrusions at the rear of the Motorcycle, rather than the rear tyre itself, would have come into contact with the Taxi first.
[18] For the foregoing reasons, we came to the conclusion that the first appellant had failed to establish his case on a balance of probabilities and, accordingly, dismissed the appeal as far as he was concerned.
[19] The second appellant argued that the Judge had erred in holding that her claim for damages for clinical depression should fail and challenged the latter’s reasons for this decision. In our view, before considering the substantive merits of the second appellant’s arguments, it would be appropriate, first, to set out the applicable principles relating to the ascertainment of liability in the context of claims in negligence for psychiatric harm.
[20] The general position in Singapore with respect to liability for negligence in cases of pure economic loss and cases of physical damage has now been settled by the recent decision of this court in Spandeck ([2] supra). Briefly stated, the position in Singapore follows, in the main, the two-stage test laid down by Lord Wilberforce in Anns v Merton London Borough Council [1978] AC 728 (“Anns”), where the learned law lord observed, as follows (at 751–752):
[21] More specifically, Chan Sek Keong CJ, delivering the judgment of the court in Spandeck, observed thus (at [73]):
In a similar vein, the learned Chief Justice summarised the applicable law in Singapore at the end of the judgment in Spandeck in the following terms (at [115]):
[22] The court in Spandeck did not need to consider what ought to be the applicable legal rules and principles with respect to liability in the sphere of psychiatric harm. That particular issue, however, arises in the present appeal in relation to the second appellant and raises an important (and related) question: To what extent is the two-stage test laid down in Spandeck applicable in the sphere of psychiatric harm? By way of a brief overview of the answer to this question, which will be elaborated upon in more detail in a moment, this same two-stage test applies in cases of psychiatric harm as well, although specific criteria would apply in this particular context.
[23] The law relating to liability in negligence for psychiatric harm has had a lengthy and (to a large extent) chequered history (see, generally, Peter R Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (Lawbook Co, 2nd Ed, 2006), especially at ch 1). It is clear, however, that a significant legal watershed occurred when the leading decision of the House of Lords in McLoughlin v O’Brian [1983] 1 AC 410 (“McLoughlin”) was delivered in 1982 (this was followed in subsequent decisions, notably, the (also) House of Lords decisions of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (“Alcock”) and White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (“White”)). The next major landmark in this area of the law (also laid down by the House of Lords) was the decision in Page v Smith [1996] AC 155 (“Page”). As we shall see, the decisions in McLoughlin and Page, whilst seminal in their own right, have engendered difficulties which require clarification (in the case of the former) and even rejection (in the case of the latter) in the context of what the position in Singapore ought to be. We will elaborate upon these observations in due course.
[24] It is apposite, in the meantime, to note that there is a dearth of case law in Singapore with regard to claims in negligence for psychiatric harm. Indeed, there appears to be only one significant decision which has analysed the duty of care in this area of the tort of negligence in any detail – the Singapore High Court decision of Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317 (“Pang Koi Fa”), where the principles laid down in McLoughlin were applied. These principles were also applied in the Malaysian High Court decision of Jub’il bin Mohamed Taib Taral v Sunway Lagoon Sdn Bhd [2001] 6 MLJ 669. There is an older Malaysian High Court decision, Zainab Binti Ismail v Marimuthu [1955] MLJ 22, where Bourhill v Young [1943] AC 92 (“Bourhill”) and Hambrook v Stokes Brothers [1925] 1 KB 141 (“Hambrook”) were cited. There is also a more recent decision (also of the Singapore High Court), Man Mohan Singh s/o Jothirambal Singh v Dilveer Singh Gill s/o Shokdarchan Singh [2007] 4 SLR 843, where there was some discussion of the issue (an appeal against the High Court’s decision is currently pending before this court).
[25] It would be appropriate, in our view, if we examine – in greater detail – the decisions of the House of Lords in both McLoughlin and Page before setting out what we consider the law in Singapore ought to be with regard to liability in negligence for psychiatric harm and how this legal framework relates to the approach and principles laid down in Spandeck ([2] supra).
[26] Although the law preceding the House of Lords’ decision in McLoughlin ([23] supra) was not by any means a legal vacuum (see, for example, the (earlier) House of Lords decision of Bourhill ([24] supra)), as alluded to earlier (above at [23]), McLoughlin was a major landmark in the law relating to liability for negligence that had inflicted psychiatric harm on the victim/plaintiff. It represented a detailed (and up-to-date) analysis of the law and laid down further guidelines for the courts.
[27] The fact situation in McLoughlin, which is important to note, was as follows. There was a tragic and horrendous road accident which involved the plaintiff’s husband (“Mr McLoughlin”), who was driving, and three of her children. Another child (“the fourth child”), travelling in a following car, was (fortunately) not involved in the accident. The collision was between the car driven by Mr McLoughlin and a lorry driven by the first defendant (and owned by the second defendant). That particular lorry had, in fact, been in a collision with another lorry driven by the third defendant (and owned by the fourth defendant). It was admitted that the accident to the car driven by Mr McLoughlin was caused by the defendants’ negligence.
[28] Mr McLoughlin suffered bruising and shock. One child, a son aged 17 (“the first child”), suffered injuries to his head and his face, cerebral concussion, fractures of both scapulae as well as bruising and abrasions. Another child, a daughter aged seven (“the second child”), suffered concussion, a fracture of the right clavicle, bruising, abrasions and shock. A third child, a daughter who was nearly three years old (“the third child”), was so seriously injured that she died almost immediately.
[29] The plaintiff herself (“Mrs McLoughlin”) was at home at the time of the accident. This was about two miles from the scene of the accident. The person driving the car in which the fourth child (a son aged 11) was travelling reported the accident to Mrs McLoughlin about an hour or so later. He told her that he thought that the first child was dying, and that he did not know the whereabouts of Mr McLoughlin or the condition of her daughter. He then drove her to the hospital to which her children and Mr McLoughlin had been taken.
[30] At the hospital, Mrs McLoughlin met the fourth child (who had been in the other car, thereby escaping injury), who told her that the third child was dead. Mrs McLoughlin was then taken down a corridor and, through a window, she saw the second child, who was crying, with her face cut and covered with dirt and oil. She could also hear the first child shouting and screaming. She was then taken to Mr McLoughlin, who was sitting with his head in his hands and who was dishevelled and covered in mud and oil. He began sobbing when he saw Mrs McLoughlin. The latter was then taken to see the first child, whose left face and left side were covered entirely. He appeared to recognise Mrs McLoughlin, but then lapsed into unconsciousness. Mrs McLoughlin was then taken to see the second child, who had by then been cleaned up. The latter was too upset to speak and simply clung on to Mrs McLoughlin. As Lord Wilberforce put it (see McLoughlin at 417):
[31] Mrs McLoughlin subsequently brought proceedings against the defendants. It is important to note that it was assumed by the trial judge that Mrs McLoughlin was a person of reasonable fortitude and had indeed suffered the condition complained of, which was described by Lord Wilberforce as “severe shock, organic depression and a change of personality”, with “[n]umerous symptoms of a physiological character … manifested” (ibid). The type of psychiatric harm which Mrs McLoughlin claimed she had suffered is a not unimportant point, simply because a threshold requirement (as described by Lord Bridge of Harwich in McLoughlin ([23] supra) at 431) which must be satisfied before there can be recovery for psychiatric harm is that the claimant must have suffered from a recognisable psychiatric illness (though cf the terminology utilised in Australian legislation at [113] below).
[32] The trial judge gave judgment in favour of the defendants, holding that they owed no duty of care to Mrs McLoughlin because it was not reasonably foreseeable that she would suffer nervous shock.
[33] The English Court of Appeal affirmed the decision at first instance, albeit on somewhat different grounds. This was well-summarised by Lord Wilberforce, as follows (id at 417):
[34] Mrs McLoughlin then appealed to the House of Lords. Lord Wilberforce set out, in succinct fashion, the fundamental issue in the case, as follows (id at 417–418):
[35] The House of Lords held in favour of Mrs McLoughlin and therefore allowed the appeal. The leading judgment was, in fact, delivered by Lord Wilberforce. Significantly, Lord Wilberforce had earlier also laid down the two-stage test in Anns ([20] supra). The observations made by Lord Wilberforce in McLoughlin ([23] supra) will be set out in full not only because (as just mentioned) he delivered the leading judgment, but also because it is important, in our view, to clarify any terminological uncertainty that might be generated (particularly if we compare Lord Wilberforce’s observations in McLoughlin with his formulation of the two-stage test in Anns). Indeed, we shall demonstrate that Lord Wilberforce’s approach in McLoughlin towards ascertaining whether a defendant owed a duty of care was consistent with his approach in Anns and, consequently, with the approach that this court adopted in Spandeck ([2] supra). In order to proceed in the clearest way possible, we propose to divide Lord Wilberforce’s observations (which are important, albeit relatively lengthy) into three parts. Before proceeding to do so, however, we should note that two other law lords in McLoughlin arrived at the same result by adopting what was, in our view, a much broader approach. In particular, Lord Bridge and Lord Scarman applied a “pure” test of reasonable foreseeabilty without more (reference may also be made to the views of Thomas J in the New Zealand Court of Appeal decision of van Soest v Residual Health Management Unit [2000] 1 NZLR 179, which may, in turn, be contrasted with the views of the other four judges in the same case, who adopted Lord Wilberforce’s approach in McLoughlin instead). With respect, the approach taken by Lord Bridge and Lord Scarman in McLoughlin is, in our view, too broad. As we shall see in a moment, Lord Wilberforce added three factors which served to constrain the otherwise extensive liability that might result if a “pure” test of reasonable foreseeability alone were applied.
[36] In the first part (“Part 1”) of his judgment in McLoughlin ([23] supra), Lord Wilberforce observed thus (at 420–421):
[37] Lord Wilberforce then proceeded, in the second part (“Part 2”) of his judgment in McLoughlin, to enunciate what he viewed to be the “policy arguments against a wider extension” [emphasis added] (id at 421) of liability, as follows (ibid):
[38] Finally, in the third part (“Part 3”) of his judgment in McLoughlin, the learned law lord observed as follows (id at 421–422):
[39] Part 1 of Lord Wilberforce’s judgment in McLoughlin ([23] supra) (reproduced above at [36]) is instructive in several ways. In its most general sense, this portion of the learned law lord’s judgment not only reaffirms his earlier views in Anns ([20] supra) at 751–752 (reproduced above at [20]), but also (and more importantly) supports and is consistent with the views of this court in Spandeck ([2] supra), as reproduced above at [21]. These views constitute, in fact, the general foundation upon which a duty of care in claims in negligence for non-physical injury (including psychiatric harm) is based. Briefly, these views include the following:
(a) The court needs to draw clear boundaries to (or place limits on) liability in negligence for non-physical injury in order to ensure that such liability does not become indeterminate and/or arbitrary. As Prof Tan Keng Feng aptly points out (see Tan Keng Feng, “Liability for Psychiatric Illness – The English Law Commission” (1999) 7 Tort Law Rev 165 (“Liability for Psychiatric Illness”)), there is no difficulty in so far as physical injury is concerned as the very nature of the injury itself constitutes the necessary boundary or limitation (which he terms the “physical impact limit” (id at 166)). It should also be noted that this court in Spandeck was of the view (at [64] and [70]–[72]) that there should not be different tests for determining whether a duty of care exists in cases of physical injury on the one hand and cases of non-physical injury on the other. Most importantly, perhaps, such boundaries or limits are drawn by the court as a matter of policy. However, Lord Wilberforce’s reference to “policy” in McLoughlin will (as we shall see below) require some clarification.
(b) Mere factual foreseeability, whilst a necessary condition or prerequisite to establish a duty of care, is not (in and of itself) sufficient (see Spandeck at [75]–[76]).
(c) Proximity between the plaintiff and the defendant is also a condition or prerequisite which must be satisfied in order to establish a duty of care (id at [77]) and, to this end, policy arguments must be considered.
[40] Before proceeding to consider Part 2 of Lord Wilberforce’s judgment in McLoughlin in more detail and in its context, an important clarification of the learned law lord’s use of the concept of “policy” (at, inter alia, 421) is not only instructive, but also necessary in order to avoid the very real confusion that would otherwise result. Indeed, the danger of such confusion reminds us of the famous (and oft-cited) words of Burrough J in the leading English decision of Richardson v Mellish (1824) 2 Bing 229; 130 ER 294 (at 252; 303) that public policy is:
It is, of course, true that the ebullient Lord Denning MR was, in comparison, more sanguine when he observed in the English Court of Appeal decision of Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591 (at 606) that:
It is, nevertheless, clear that the concept of “public policy” is not an easy one and the court must be vigilant to ensure that it is properly conceived as well as properly applied. In the specific context of the present appeal, let us elaborate on how possible confusion can, in fact, be avoided.
[41] The key to avoiding the possible confusion referred to in the preceding paragraph is to recognise that there are different conceptions of the concept of “policy”. Indeed, the concept of “public policy” referred to in that very same paragraph is but one conception of the concept of “policy”.
[42] As we shall illustrate in a moment, Lord Wilberforce was, in McLoughlin ([23] supra), referring to two different conceptions of the concept of “policy”.
[43] The first conception of “policy” does not refer to “public policy” as such. It is, rather, a reference to the factors that must be taken into account as between the parties to a negligence action (which constitute, in our view, an example of “legal policy” [emphasis added] as referred to in the House of Lords decision of McFarlane v Tayside Health Board [2000] 2 AC 59 at 108, per Lord Millett). In particular, these factors will ensure that there is sufficient proximity between the parties. Indeed, as this court emphasised in Spandeck ([2] supra at [77]), proximity is the key legal focus in so far as the first stage of the two-stage test established therein is concerned. Looked at in this light, we would respectfully suggest that it is preferable (from both theoretical as well as practical points of view) to avoid the use of the term “policy” altogether when discussing legal policy and to refer, instead, to the concept of “proximity”. In other words, the term “policy” should be reserved exclusively for use in the context of “public policy”.
[44] The second conception of “policy” refers, as just mentioned, to “public policy”. Put simply, this particular conception of “policy” does not refer to the relationship between the parties as such (which, as we have emphasised in the preceding paragraph, is more appropriately characterised as well as analysed under the rubric of “proximity”), but refers, instead, to broader societal considerations. It is this particular conception of “policy” that constitutes the second stage of the two-stage test laid down by this court in Spandeck. In Spandeck itself, Chan CJ elaborated upon this particular conception of “policy”, as follows (at [83]–[85]):
[45] Unfortunately, Lord Wilberforce did not, with respect, distinguish between the two conceptions of “policy” referred to earlier (above at [43]–[44]). For example, in Part 1 of his judgment in McLoughlin (reproduced above at [36]), the learned law lord was, in point of fact, referring to the first conception of “policy”, viz, legal policy (or, to use the preferred term (see [43] above), proximity). However, in Part 2 of his judgment in the same case (reproduced above at [37]), Lord Wilberforce appeared to be referring to aspects of the second conception of “policy”, viz, public policy, instead. That Part 2 of his judgment follows immediately from Part 1 of the same judgment serves only to exacerbate the confusion in so far as the various conceptions of “policy” are concerned. It is admitted, however, that because the line between the universal and the particular (see the correlation between the two as pointed out by this court in Spandeck at [28]) is, by its very nature, not always clear (and may even be blurred), the opportunities for confusion are (unfortunately) multiplied. Nevertheless, a clear reading of Part 2 of Lord Wilberforce’s judgment in McLoughlin does, in fact, suggest (on balance) that it was the second (and broader) aspect of (public) “policy” that the learned law lord was referring to. That this is the correct interpretation to adopt is confirmed, in no uncertain terms, by Part 3 of Lord Wilberforce’s judgment in the same case – to which our attention must now turn.
[46] Part 3 of Lord Wilberforce’s judgment (reproduced above at [38]) is, in fact, the most important part of his judgment in McLoughlin ([23] supra). It is, indeed, this particular part of the judgment that is cited most often. This is not surprising in view of the fact that the learned law lord set out in Part 3, in detail, the “three elements” (id at 422) which the court ought to consider in every claim founded on negligence that has resulted in nervous shock. Indeed, as already noted (above at [24]), these three elements were considered and applied by the Singapore High Court (in Pang Koi Fa ([24] supra)).
[47] In Part 3 of Lord Wilberforce’s judgment in McLoughlin, the three elements referred to are clearly part of the first (and narrower) conception of “policy”, viz, legal policy, which (as we have noted above at [43]) relates to the issue of proximity between the parties themselves. The learned law lord, in fact, expressly stated that this was so. He referred to the concept of “proximity” no fewer than five times in this part of his judgment. Indeed, he stated at 422 (see the passage reproduced above at [38]) that “[t]he claim … ha[d] to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident” [emphasis added]. It is also extremely significant, in our view, that Part 3 of Lord Wilberforce’s judgment follows immediately from Part 2 of the same judgment, where (as we noted above at [45]) there is a clear reference to the second (and broader) conception of “policy”, viz, public policy. Indeed, the contrast between the second and the first conceptions of “policy”, as embodied within Part 2 and Part 3 (respectively) of Lord Wilberforce’s judgment in McLoughlin, could not be clearer.
[48] The upshot of the above analysis is that the apparent “policy” factors referred to by Lord Wilberforce in Part 3 of his judgment in McLoughlin are, in substance, factors that relate to proximity between the parties instead. There would remain residuary “policy” factors that are, in our view, “true” policy factors inasmuch as they relate to public policy and thus fall within the purview of the second conception of “policy”. It will be seen that both these aforementioned stages of legal analysis – ie, consideration of, first, proximity, followed by public policy – correspond precisely to the two-stage test set out by this court in Spandeck ([2] supra) (reproduced above at [21]). In other words - and this is an extremely important point – the two-stage test laid down in Spandeck is equally applicable to a situation where there is a claim in negligence for psychiatric harm. There is therefore no need for a separate legal regime governing such a claim. It will be explained, further, why the two-stage test in Spandeck should be the legal approach that is to be adopted in all types of claims in negligence in the Singapore context in so far as establishing a legal duty of care on the part of the defendant is concerned. At this stage, it will suffice to state that such an approach, whilst simple, is by no means simplistic. On the contrary, it brings certainty to a much vexed (albeit extremely important) area of the law of tort that has engendered many difficulties, both confused and confusing, across Commonwealth jurisdictions.
[49] At this juncture, it remains for us to consider the possibility that, as a result of the approach which Lord Wilberforce took in McLoughlin ([23] supra), the two-stage test which he laid down in Anns ([20] supra) at 751–752 (reproduced above at [20]) must now be reinterpreted as referring to factual foreseeability at the first stage, followed (at the second stage) by “policy” considerations in the narrower (and first) conception of “policy”, which (as we saw above at [43] and [45]) relates to proximity. We do not, however, think that this is what the learned law lord intended or meant.
[50] In the first place, our analysis earlier (above at [42]–[47]) clearly demonstrates that Lord Wilberforce was referring to two separate and distinct conceptions of “policy” in McLoughlin. This, in all likelihood, means that he similarly had these two distinct conceptions of “policy” in mind when enunciating his two-stage test in Anns.
[51] Secondly, and on an even more important as well as closely-related note, Lord Wilberforce referred, in his very formulation of the two-stage test in Anns itself, to the requirement, at the first stage, of “a sufficient relationship of proximity or neighbourhood” [emphasis added] (see Anns at 751).
[52] Thirdly, at least one subsequent House of Lords decision has adopted the interpretation of Lord Wilberforce’s judgment which we have advocated. In Alcock ([23] supra), the court treated the three factors enunciated by Lord Wilberforce in Part 3 of his judgment in McLoughlin ([23] supra) as falling within the sphere of proximity instead (viz, the first stage of the two-stage test set out in Anns (reproduced above at [20]) and in Spandeck (reproduced above at [21])). Amarjeet Singh JC put it well in Pang Koi Fa ([24] supra), as follows (at 326, [33]):
[53] Finally, and on the equally important level of general principle and development of the law in this difficult area, the approach which this court adopted in Spandeck (reproduced above at [21]) serves, simultaneously, to reconcile the substance of what appear to be rather inconsistent approaches (particularly under English law).
[54] It is, in the circumstances, highly unlikely that Lord Wilberforce was referring to only factual foreseeability (instead of proximity) in the first stage of his two-stage test in Anns. If he was (and, as just mentioned, we do not think that this was the case in the first place), we must, respectfully, disagree with such an approach. However, it is vitally important to point out that, even if the first stage of Lord Wilberforce’s two-stage test in Anns is taken as referring to factual foreseeability only, nothing of substance would turn on it because, as this court explained in Spandeck, there must, in principle as well as in logic, justice and fairness, be a holistic and integrated analysis of the relevant factual matrix both from the perspective of proximity (as between the parties) and from the perspective of public policy (on a broader societal level). The latter may operate to exclude a duty of care for the purposes of the tort of negligence even if the situation concerned passes legal muster under the former (inasmuch as there is otherwise proximity between the parties in law).
[55] Indeed, in Spandeck ([2] supra), this court was clearly aware of the possible difficulties surrounding the meaning of the first stage of the two-stage test in Anns. As Chan CJ put it (id at [34]):
[56] The response to the question posed in the preceding paragraph was clear and unambiguous to this court. Chan CJ observed thus (id at [75]):
[57] In summary, a close analysis of the observations of Lord Wilberforce in McLoughlin ([23] supra) (in the context of his earlier enunciation of the two-stage test in Anns ([20] supra)) reveals that his statements of principle in both of these cases are consistent with what this court decided in Spandeck (which adopted a two-stage test, with (legal) foreseeability or proximity as the focus at the first stage and (broader) public policy as the focus at the second stage) to the extent that the three factors set out in Part 3 of the learned law lord’s judgment in McLoughlin are an integral part of the first stage of the two-stage test in Anns, which formed the basis of the (likewise) two-stage test laid down in Spandeck.
[58] We turn now to consider the second major House of Lords decision, viz, Page ([23] supra).
[59] The decision in Page was another major legal landmark in the law relating to liability in negligence for psychiatric harm. In that case, the House of Lords drew a clear distinction between primary and secondary victims. This distinction had, in fact, been drawn in earlier cases (for instance, per Lord Oliver of Aylmerton in Alcock ([23] supra) at 407). However, Page not only brought this distinction to the fore, but also elaborated upon it in some detail. More importantly, the House of Lords held in Page that where the plaintiff was the primary victim, he or she was entitled to recovery against the defendant even when the psychiatric harm suffered was not reasonably foreseeable by the latter – provided that physical injury to the plaintiff (which he or she apprehended and which need not have actually occurred) was foreseeable and the apprehension of such physical injury resulted in the psychiatric harm. Indeed, in Page itself, physical injury, whilst foreseeable, did not, in fact, actually occur. Nevertheless, it was held (consistent with the general principle just set out) that the plaintiff in that case (“Mr Page”) was entitled to recover against the defendant in that case (“Mr Smith”) for the psychiatric illness that ensued as a consequence of the collision between their cars.
[60] It is significant, in our view, that the decision in Page was not a unanimous one. Indeed, it was a decision based on the barest of majorities – three to two. As we shall see in a moment, the two dissenting judgments were not unpersuasive. More importantly, perhaps, we find, with respect, significant difficulties with the decision of the majority. Looked at in this light, it is important to proceed to consider these judgments in more detail.
[61] By way of factual background, there was, in Page, a motor accident in July 1987. Mr Page was driving his car along a road when Mr Smith, driving in the opposite direction, cut across his (Mr Page’s) path whilst entering a side road. A collision occurred in which Mr Page sustained no physical injury. There was also no physical injury sustained by either Mr Smith, his wife or his child, who were passengers in his car. Put simply, this was a minor motor accident (although there was considerable damage to both vehicles). However, Mr Page had, for a very long time, suffered from a condition known as myalgic encephalomyelitis (“ME”) (also known as chronic fatigue syndrome or post-viral fatigue syndrome). He had suffered a particularly severe attack of ME some four months earlier (in March 1987) as a result of a viral infection. Prior to the accident, he had been recovering from that attack and had hoped to return to work in September 1987. Mr Page brought an action against Mr Smith for damages for personal injuries caused by the latter’s negligence. He argued that his condition (relating to ME) had become chronic and permanent as a result of the accident and that he would never be able to work again. According to Mr Page, he had felt exhausted three hours after the accident and had taken to his bed, whereupon the exhaustion continued and his condition became chronic and permanent.
[62] The House of Lords, as mentioned earlier (above at [59]), found in favour of Mr Page, but only (as was noted above at [60]) by a bare majority of three to two. We turn now to consider the various judgments delivered by the court.
[63] Turning, first, to the judgments delivered by the majority, the leading judgment was delivered by Lord Lloyd of Berwick (with whom Lord Ackner and Lord Browne-Wilkinson agreed). The learned law lord drew a (crucial) distinction between a primary victim on the one hand and a secondary victim on the other. In Page, the facts related to a primary victim and the basic issue before the court was whether or not the foreseeability of physical injury (as opposed to psychiatric injury) to Mr Page was sufficient to enable him to recover damages for nervous shock (bearing in mind that there had been no actual physical injury to Mr Page himself).
[64] Lord Lloyd was of the view that “[t]hough the distinction between primary and secondary victims [was] a factual one, it ha[d] … important legal consequences” [emphasis added] (Page at 184). However, in our view, with respect, this merely factual distinction does not, in and of itself, translate into a legal distinction in the absence of a normative legal justification. Lord Lloyd did observe that foreseeability of psychiatric harm was relevant only vis-à-vis secondary victims. However, in so far as primary victims were concerned, since foreseeability of physical injury was sufficient to found a duty of care on the part of the defendant, and given the fact that no distinction ought to be drawn between physical and psychiatric injury (given the expansion in the state of medical knowledge), there was no need for a plaintiff who was a primary victim to demonstrate (further) that psychiatric injury was also foreseeable. This last-mentioned legal control mechanism ought only to apply to secondary victims. In the learned law lord’s words (id at 190):
[65] Turning, next, to the judgments delivered by the minority, Lord Keith of Kinkel was of the view (id at 169) that “[r]easonable foreseeablility being the test, there [was] no logical ground for distinguishing between the two classes of claimants [ie, primary victims and secondary victims]”. Lord Jauncey of Tullichettle, who was the other dissenting judge, observed thus (id at 171–172):
The learned law lord also observed, later in his judgment, thus (id at 175):
[66] As alluded to earlier (above at [60]), we find, with respect, the decision of the majority in Page ([23] supra) to be problematic for a number of reasons. Indeed, many of them are to be found in the characteristically perceptive judgment of Lord Goff of Chieveley in the House of Lords decision of White ([23] supra). Whilst the learned law lord dissented in that particular decision, his criticisms of Page (being, strictly speaking, obiter dicta) were not commented on adversely by his brethren.
[67] Lord Goff was of the view that there were three broad grounds of criticism in respect of the majority’s decision in Page. His observations in this regard merit (because of their importance) extensive quotation, as follows (White at 475–476):
[68] We would gratefully adopt the reasoning of Lord Goff set out in the preceding paragraph, and add some observations of our own.
[69] Leaving aside the issue of precedent (which was Lord Goff’s first point, and a not unimportant one at that), the basic difficulty centres on the issue of characterisation. The basic thrust of the approach of the majority in Page ([23] supra) was as follows. The court ought not now to distinguish between physical injury on the one hand and psychiatric harm on the other. In the premises, if physical injury was foreseeable, then even if no actual physical injury resulted, the plaintiff was entitled to recover damages for any psychiatric injury inasmuch as such injury would be considered as part of the extent of the physical injury suffered as a result of the defendant’s negligence pursuant to the “eggshell skull rule”.
[70] With respect, the premises upon which the majority in Page based their arguments are flawed.
[71] Whilst there ought not now to be an artificial distinction between physical injury on the one hand and psychiatric harm on the other in relation to the applicable test for determining whether a duty of care exists, it is clear that there nevertheless ought still to exist a distinction from the perspective of legal control mechanisms to prevent a floodgate of litigation ensuing. In other words, physical injury in the conventional sense (which excludes psychiatric harm) delimits, by its very nature, the extent of liability owed by the defendant concerned to potential plaintiffs. Put simply, the danger of a floodgate of litigation ensuing is minimal or non-existent where physical injury is concerned.
[72] Contrast the situation where physical injury occurs, however, with two other situations.
[73] The first relates to cases of pure economic loss. This court in Spandeck ([2] supra) has dealt with (the legal rules and principles relating to) this particular type of loss comprehensively (see above at [21]).
[74] The second, which is one of the important issues in the present appeal, relates to negligence that results in psychiatric harm. Not unlike pure economic loss, the potential reach of a negligent act or statement that may cause psychiatric harm is potentially open-ended. Unlike the situation where physical illness or injury is caused (where the extent of the damage is necessarily limited in space and time, as noted above at [71]), this is not the situation with regard to psychiatric harm (and explains the increasingly stringent approach adopted by the House of Lords, particularly in McLoughlin ([23] supra), Alcock ([23] supra) and White ([23] supra)). In this regard, the following observations by Prof Tan Keng Feng in Law Reform Committee, Singapore Academy of Law, Discussion Paper on Liability for Negligently Inflicted Psychiatric Illness (22 August 2000) (“Discussion Paper”) at pp 2–3 should also be noted (a similar passage by the same author also appears in “Liability for Psychiatric Illness” ([39] supra) at 167):
Tony Weir, in his review of Nicholas J Mullany & Peter R Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage: The Law of “Nervous Shock” (Lawbook Co Ltd, 1993) at [1993] CLJ 520, stated, in a similar vein, thus (at 521):
[75] Hence, the majority of the court in Page ([23] supra) was, with respect, in error when it equated physical injury with psychiatric harm for the purposes of formulating legal control mechanisms. As we have just seen, given the nature of each type of injury, the respective legal control mechanisms ought to be different.
[76] It may, however, be argued that the legal control mechanism vis-à-vis psychiatric harm is different inasmuch as the majority of the court in Page had distinguished between primary victims on the one hand and secondary victims on the other. However, the question that then arises is this: Why should such a distinction be drawn if both categories of victims have suffered the same type of injury, viz, psychiatric harm? The answer, presumably, would be that a primary victim who suffers both physical injury and psychiatric harm ought to be subjected to fewer legal preconditions with regard to recovery because both types of injury ought to be treated as being the same. However, for the reasons we have given earlier (above at [70]–[74]), this answer is, in fact, flawed.
[77] More important, perhaps, is the issue of substantive justice – or, as Lord Goff put it in White ([23] supra) at 475 (see the quotation set out above at [67]), “practical justice”. Put simply, there is, in our view, no reason grounded in policy, principle or justice and fairness as to why a primary victim should be treated more favourably than a secondary victim; from this perspective, there is a powerful reason for doing away with the distinction between primary victims and secondary victims. Let us elaborate.
[78] The law, as originally formulated, has moved (in the context of damages for psychiatric harm) from allowing recovery by a primary victim only to extending recovery to a secondary victim.
[79] In the English High Court decision of Dulieu v White & Sons [1901] 2 KB 669 (“Dulieu”), the plaintiff was permitted to recover for nervous shock which was caused by her apprehension of physical injury as a result of the negligent conduct of the defendant. What engendered controversy was Kennedy J’s dictum in that case (at 675) to the effect that the shock concerned must arise from reasonable fear of immediate personal injury to oneself. This dictum was, in fact, rejected by the majority of the English Court of Appeal in Hambrook ([24] supra). In Hambrook, the plaintiff’s wife had not herself been in any personal danger. However, she had just parted with her three children (a daughter and two sons), having (as was her habit) accompanied them part of the way to school. Shortly thereafter, she witnessed a lorry, which the defendants’ servant had negligently left unattended, charging down the steep incline (where she was standing) and rapidly round the bend in the direction of where she had left her children. Although her children were not within her sight, the plaintiff’s wife became very anxious for their safety. She inquired of bystanders what had happened and discovered that a little girl who wore spectacles had been taken away injured. This fit the description of her daughter. She became agitated, tearing her hair and screaming. She then rushed to the school and found her two sons there. However, her daughter was missing. She went to the hospital, where she found her daughter, who had been knocked down by the lorry and had suffered serious injuries. The plaintiff’s wife was three or four months pregnant at that time. As a result of what happened, she suffered a serious nervous shock and, as a consequence, a severe haemorrhage as well. She recovered partially, but then suffered a relapse. She was operated on and a dead foetus was removed. Unfortunately, she died a few days later. The plaintiff brought an action against the defendants under the Fatal Accidents Act 1846 (c 93) (UK) in respect of the death of his wife to recover damages for the loss of her services as manageress of his restaurant. Although the defendants admitted the negligence alleged by the plaintiff, they argued that the shock alleged to have been sustained by the deceased wife was too remote. The majority of the court, however, held in favour of the plaintiff, although (unlike the situation in Dulieu) there had been no reasonable fear of personal injury to the plaintiff’s wife herself. The majority’s observations are particularly apposite and merit quotation in full.
[80] First, Bankes LJ observed, in Hambrook, as follows (at 151):
[81] Atkin LJ observed, in the same case, thus (id at 157):
[82] Hambrook is an important decision inasmuch as it shifted the English courts’ approach vis-à-vis claims in negligence for psychiatric harm from what has commonly been described as the “impact theory” to the “shock theory” (see, for example, Tan Keng Feng, “Nervous Shock to Primary Victims” [1995] Sing JLS 649 at 653). This shift is also justified by considerations of justice and fairness (as embodied in the observations of Bankes and Atkin LJJ in Hambrook, which have just been quoted in the preceding two paragraphs; significantly, the latter judge was later to formulate the famous “neighbour principle” in the seminal House of Lords decision of Donoghue v Stevenson [1932] AC 562).
[83] What Page ([23] supra) has, in substance, effected is a return to the “impact theory” in so far as primary victims are concerned (see “Nervous Shock to Primary Victims” at 653). As aptly stated in Nicholas J Mullany, “Psychiatric damage in the House of Lords – Fourth time unlucky: Page v Smith” (1995–1996) 3 Journal of Law and Medicine 112 (“Psychiatric damage in the House of Lords”) at 119–120:
Reference may also be made, in this regard, to Peter Handford, “A New Chapter in the Foresight Saga: Psychiatric Damage in the House of Lords” (1996) 4 Tort Law Rev 5 (“A New Chapter in the Foresight Saga”), where the learned author observed thus (at 7):
[84] The result of the majority’s approach in Page is to favour primary victims over secondary victims although, as the observations of both Bankes and Atkin LJJ in Hambrook ([24] supra) illustrate (see above at [80] and [81], respectively), there is no reason in logic, principle or (for that matter) justice and fairness to adopt such an approach. Indeed, one would have thought that, at the very least, both primary as well as secondary victims ought to be treated in the same way. If so, then the test for determining the existence of a duty of care vis-à-vis both of these categories of victims in the context of claims for nervous shock should be the same.
[85] There are also other difficulties that arise from adopting the approach of the majority in Page.
[86] There are, first, practical difficulties in defining as well as identifying who a primary victim is.
[87] The relevant case law itself demonstrates that there are both broader as well as narrower views of who a primary victim is (as embodied in the judgments of Lord Oliver in Alcock ([23] supra) at 407 and Lord Lloyd in Page ([23] supra) at 184, respectively).
[88] Even more importantly, perhaps, it would, in our view, be invidious if the strictness of the applicable legal test as well as the possibility of completely contrary results ensuing were to depend on how the relevant fact situation is characterised. Put simply, a victim in the same fact situation could, depending on how the relevant facts are perceived, be characterised as either a primary victim or a secondary victim (and, on many occasions, with equal persuasiveness). In this regard, the following examples given by Prof Trindade in a characteristically perceptive note on Page make the point both eloquently and pointedly, and are therefore quoted in full (see F A Trindade, “Nervous Shock and Negligent Conduct” (1996) 112 LQR 22 at 24):
[89] In a similar vein, Mrs Hopkins has observed thus (see C A Hopkins, “A New Twist to Nervous Shock” [1995] CLJ 491 at 493):
[90] The practical (and related) result of the majority’s approach in Page ([23] supra) is well-put by two leading commentators in the field, who observe that “[t]he result is that counsel will still be looking to squeeze plaintiffs into the primary [victim] category wherever possible” (see Nicholas J Mullany & Peter R Handford, “Moving the Boundary Stone by Statute – The Law Commission on Psychiatric Illness” (1999) 22 UNSW Law Journal 350 (“The Law Commission on Psychiatric Illness”) at 405). Indeed, they also point to actual inconsistencies which have been generated in the case law itself (id at 404–405; see also United Kingdom, Liability for Psychiatric Illness (Law Com No 249, 1998) (“The English Law Commission Report”) at para 6.12). The learned authors further point – correctly, in our view – to the fact that “[t]he [English] Law Commission was quite clearly uncomfortable with the developments stemming from Page v Smith” (see “The Law Commission on Psychiatric Illness” at 403), but nevertheless did not resolve the difficulties and made inconsistent recommendations instead (see generally id at 403–407; see also (for an overview of the difficulties engendered by Page and the English Law Commission’s recommendations) The English Law Commission Report at paras 2.52–2.60, 5.11–5.16 and 5.45–5.54).
[91] The following example by a local author illustrates both the difficulties referred to earlier (above at [77]–[90]) in terms of distinguishing between primary and secondary victims, as well as the possible injustice that might result from the distinction itself (see Teo Cheng Seong, Daniel, “The New Orthodoxy in the Foresight Saga: A Look at Page v Smith” (1997) 18 Sing LR 300 at 309–310):
[92] However, this is not to state that there are no substantive legal consequences whatsoever arising from the fact that one plaintiff is, in effect, a primary victim and another, a secondary victim – even if this distinction is only recognised as a matter of fact (rather than, as Page ([23] supra) mandates, as a matter of law). As Mullany pertinently pointed out (see “Psychiatric damage in the House of Lords” ([83] supra) at 116):
Reference may also be made to “A New Chapter in the Foresight Saga” ([83] supra). Indeed, as Lord Keith pertinently pointed out in Page (at 167):
The following observations by Lord Jauncey in the same case ought also to be noted (id at 176):
[93] Whilst it is true that Lord Hoffmann pointed out, in the recent House of Lords decision of Rothwell v Chemical & Insulating Co Ltd [2007] 3 WLR 876 (“Rothwell”), that Page “does not appear to have caused any practical difficulties and is not … likely to do so if confined to the kind of situation which the majority in that case had in mind” (at [32]), that observation itself cuts both ways, so to speak, inasmuch as given (as we pointed out above at [86]–[90]) the difficulty of defining who a primary victim is as well as the possibility of substantive injustice being engendered by classifying a plaintiff in a particular way (ie, as either a primary victim or a secondary victim), the fact that Page is (according to Lord Hoffmann in Rothwell) intended to apply in a very limited sphere only raises the question as to whether or not it is worth the effort to keep the legal principles laid down therein at all. Significantly, in Rothwell itself, the court was at pains to distinguish Page on the basis that the foreseeable event (viz, the development by the claimant of an asbestos-related disease due to exposure to asbestos in the course of his employment) had not occurred yet.
[94] Since an initial draft of this judgment was prepared, the House of Lords has handed down another decision where Page, whilst not directly applicable to the fact situation concerned, was referred to – see Corr v IBC Vehicles Ltd [2008] 2 WLR 499. Significantly, the criticism of Page was acknowledged by two law lords in that case (per Lord Scott of Foscote at [29] and per Lord Walker of Gestingthorpe at [40]), although the decision in Page itself was not directly challenged in that particular appeal. Even more significantly, Lord Neuberger of Abbotsbury (with whom Lord Mance agreed (at [46])), referring, inter alia, to Lord Goff’s critique of Page in White ([23] supra) (which is reproduced above at [67], and which we accepted (see above at [68])), clearly left the door open to a reconsideration of Page in the foreseeable future in the English context when he commented as follows (see Corr v IBC Vehicles Ltd at [54]):
[95] Although English decisions on the common law (in particular, those emanating from the House of the Lords) are accorded great respect by our courts, they ought not to be followed blindly. Given the various difficulties pertaining to both justification as well as justice and fairness with regard to Page as set out earlier (above at [66]–[91]), this is one occasion when we would respectfully hold that the law as laid down by the majority in Page ought not to be followed.
[96] It is now appropriate to draw the various threads of analysis together and state what the position is in the Singapore context in so far as liability in negligence for psychiatric harm is concerned.
[98] We also endorse the approach taken in Pang Koi Fa ([24] supra) inasmuch as it adopts the approach in McLoughlin ([23] supra) – in particular, we accept the three factors set out in the latter decision by Lord Wilberforce in Part 3 of his judgment therein (reproduced at [38] above), albeit with important modifications (see below at [109]). On a related note, we are further of the view that a “pure” test of reasonable foreseeability alone (as advocated by Lord Bridge and Lord Scarman in McLoughlin (see above at [35])) is too wide and, hence, ought not to be adopted in preference to that set out by Lord Wilberforce in the same case. However, we disagree, with respect, with the view that Lord Wilberforce’s characterisation of the three factors in Part 3 of his judgment in McLoughlin is to be construed as a qualifying “policy” (in the sense of public policy) within the second stage of the two-stage test in Anns ([20] supra). As we explained earlier (above at [45]–[52]), this is not what we think the learned law lord meant to say. If it is, we would, with respect, disagree with it as it would be both confusing and misleading. As explained (at [48] above), we are of the view that these factors relate, instead, to the concept of proximity within the first stage of the two-stage test laid down in Spandeck ([2] supra) (reproduced above at [21]), which is itself modelled (albeit with modifications) on the test in Anns.
[99] Before turning to consider the three factors set out by Lord Wilberforce in Part 3 of his judgment in McLoughlin proper, it would be useful to recount briefly the nature and function of the concept of proximity as set out in Spandeck. In that case, Chan CJ observed as follows (at [77]–[82]):
[100] The above observations have been set out in full above not only because they represent the leading general analysis of the concept of proximity in the Singapore context, but also because (as will be shown below at [101]–[103]) they are in fact consistent with the more specific factors set out by Lord Wilberforce in Part 3 of his judgment in McLoughlin (reproduced above at [38]) in the context of liability for nervous shock, which factors are somewhat different when compared to, for example, the factors to be considered in a situation involving liability for pure economic loss (where the twin criteria of voluntary assumption of responsibility and reliance would more appropriately apply (although these criteria could also possibly apply in a situation of psychiatric harm, depending on the precise facts of the case at hand)). In particular, the three factors set out by Lord Wilberforce are consistent with the broad categories set out by Deane J in the Australian High Court decision of The Council of the Shire of Sutherland v Heyman (1984–1985) 157 CLR 424 (“Sutherland”) (see the quotation at [99] above), which were accepted by this court in Spandeck at [78]–[79] (see, likewise, above at [99]) (see also the observations by Deane J in the (also) Australian High Court decision of Jaensch v Coffey (1984) 155 CLR 549 (“Jaensch”) at 584–585).
[101] The first factor set out by Lord Wilberforce in Part 3 of his judgment in McLoughlin ([23] supra), centring on the class of persons whose claims should be recognised, corresponds to the general category of circumstantial proximity referred to by Deane J in Sutherland at 497.
[102] The second factor mentioned by Lord Wilberforce, relating to the proximity of the claimants to the accident, corresponds to the general category of physical proximity referred to by Deane J in Sutherland (ibid).
[103] The third factor stated by Lord Wilberforce, relating to the means by which the shock is caused, corresponds to the general category of causal proximity referred to by Deane J in Sutherland (ibid).
[104] We note, at this juncture, that Spandeck ([2] supra) has been the subject of very recent (and perceptive) critique by Prof Kumaralingam Amirthalingam (see “Refining the Duty of Care in Singapore” (2008) 124 LQR 42 and “Lord Atkin and the Philosopher’s Stone: The Search for A Universal Test for Duty” [2007] Sing JLS 350 (“Lord Atkin and the Philosopher’s Stone”)). Prof Amirthalingam makes many salient points. Foremost amongst them is the argument that the concept of reasonable foreseeability should be restored as a legal test for determining the existence of a duty of care for, in his view, this concept “serves an important normative function” (see “Lord Atkin and the Philosopher’s Stone” at 353). This would, in effect, reinstate the three-part test laid down by the House of Lords in Caparo Industries Plc v Dickman [1990] 2 AC 605 (“Caparo”), which comprises the following elements: (a) foreseeability, (b) proximity, and (c) the requirement that the imposition of any duty of care be “fair, just and reasonable” (id at 618). With respect, we do not think that the law would be advanced by such a change. Indeed, the concept of proximity itself represents a legal (or normative) concept of reasonable foreseeability. The alternative concept of reasonable foreseeability which is advanced by Prof Amirthalingam is, in substance and effect, a factual one which we view as being an integral part of the (legal) test of proximity in the first place. In other words, if the threshold issue of factual foreseeability is not even satisfied in the first instance (an occurrence which, we should think, would, in the nature of things, be rare, as we noted in Spandeck itself at [75]), then the court cannot possibly proceed to ascertain whether or not there is the requisite (legal) proximity between the parties simply because there is no factual foundation on which (legal) proximity can be founded. This is not to state that the establishment of a factual foundation will necessarily lead to a finding of (legal) proximity. The former is a necessary, but not sufficient, condition for the establishment of the latter. And, viewing the entire matter from a holistic as well as practical perspective, it is clear that there is no difference, in substance, between the approach adopted in Spandeck and that proposed by Prof Amirthalingam.
[105] It should also be noted that although the two-stage test in Anns ([20] supra), which forms the basis of the test laid down by this court in Spandeck, has not been followed in England, the law in that particular jurisdiction continues (as this court noted in Spandeck at [46]-[49]) to remain in a state of flux (see, for example, the House of Lords decision of Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 181).

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