Lond Bie ten fered Lond Atin judgment in Donoghe v Seonton, La Reds ‘dpnent in Home Off Dos! eet ud Lord Wilberforce wo-soge test in Amey ‘Meron London Borough Come, asencapulig th moder” pprach to ty ofa, slings it bes gence pial fr dt fcr, ad contin Wat eneges is tin stn p the sey of damage, messy Ingres my sation Ging eto ny ae ae hat hte hol xt etce e pry oving he at and he party fo wom i owed a la PIR ree rae yn ts de Te snl bona ich cou oot fi eed esl it tu inp ay of gen soe open Oe PP Tot oe of Me: Bats gl ages tered oa he cocep of prsiny od fines enti in se don! greens are not scp of ay ch ‘os ention ws ees oie them ys pri at miele mot cent nb atch te feof ‘Seen speiisuaon ich ons dele sana fal te came, ‘elorrecpaer pagel pMagtecta ay oar ofa gvea scope lt rung fase npr budge pins comms the ne el of pie, nk he ew bs now moved in te ion ot tihng pate sine 1 te more onl eaters of set ‘rcpt aries th eine, he scope and he if Hed ts fe we ln none We mt now tise recog he wisdom Sewer often Jin he igh Co of Ata in Suton Shi Comey {gman 985) 15 CLR 0,44, whee be "epee, in ny ie thatthe Iw should develop novel categorie of lene inrementaly and by analogy with established categories, ater than by a ase extension ofa pris fie dy of eae restrained oly by indable oasieations which eught 0 negative, oro reduce or iit the sop ofthe duty othe ls of person to whom itis owed." opr nde Pe Dison singer for te admonition ta here eo ing. sla bbe fis tenn of doyafearinalleges. The "mode ope) 'e day of car, pnially as characterised by Lord Atkin’ neighbour principle sd fed Lor Wie in ns v Merton London Borough Counc wast simple inp o ase th ay of ear question inthe wie rege ef anstnes inv ipreseats ise Arguments in favour ofthe eistence of dt oft ge ca, pei a ove! eae, shouldbe supated onl by fesse» te ups dal oe cons ty fe wi eo, Bel sina eases in ih day of ear Ts been fund, This i esenially the metoilry opin dcng Cpa sel Anelgety made statment causing pure econ ‘as amply covered by precede (npr, by Hedley Byrne & Co Lid v Heller & ‘Pare Ld $2.32 bow) and he Hous of Lars eonclued tat, even taki so seco mate sch pointy fies, efit ld not warrant the imposton dy fee DUTY AND TS SCOPE: DUTY INRELATIONTO CATEGORIES OF HARD 189 Mreeyhe House of Lords ok the view at ny adancsorexesions ofthe dty of catoaras whee so cles precedent exis (the socal "novel ene" sil Be made tai nd icementy In such cass, the cour wil be guided bythe concepts of ‘exe, proximity and fies, soporte by analogy wo existing cepts ing si this subsequent developments suggest ht np, eases hae oot been eal dire after Cepar das Pe vDcknan Dest its elraiony ‘emphasis he ineemental andby arlogy approach does at inrdoce anew apd sqrt requirement for dty of are, bt merely meses ues to do wht in essence thyhneshoysdoncin he method of he comutan int—to essa om ta alg ute bean ss rate in dealing with he uy of are ise since Capra ace npr, bysbsequat Hous of ors cass concerned with pure eonoc losteng fom negligent statements and serves, 82, DUTY AND ITS SCOPE: DUTY IN RELATION TO, CATEGORIES OF HARM Maho tt as een writen ths fin his cope pins the way tan ndesading of Aewthedyofeare issues resohed in elation the pre ype of am sued The colnet general pails for duty ofeare demonstrates tt dient ceria maybe ‘pled depending on to itor: the typeof harm, nd the means by which came abet, Faris, wher ply harm acu, dilfeen rea may pp; dpenling oa whther ‘elem as det 6g Donophn Stevenson) or indie (ough third party asin ‘ay he Constbeo Mes Yrs) cused bythe defend’ eign conduct And verona ham ecu, even more singe ei are impose. Tals sen, wo wl eonsder the general principles fr dy fears they have been apd specific fact etegores: the sghforvard and paradigm case where the ‘Mend nelgent conduct exes direct pial harm (weir person injury or ery damage); where it causes indirect psc! hams whee it esl in poyehiaic ‘whet eoncuret with ater physi injury, anion nd where tein ecm ls, whee ough the pails reince onthe defendants advice or peti ater. Thai, or usin duty of cre wl be explored, with the ous onthe singin si te aegigent coedut tke place: where the seligent andaet osu byway of ‘aio (efeasae; whore therm ufered inthe conten of ese; and whee the ‘emisuied inthe cone of conratuleting. S21 Psat harm S211. ireetpysca harm or propery damage ‘Tisai lst controversial in the iw of duty of en, ands explained on the bsisof Depew Stevezon ie Although ll ofthe day ees previously identified ae Seely eleva to this category of case (se Mar Rich & Co AG v shop Rock Marine bd (1986] AC 21,235 (Lord Steyn), th practice in he ets, andthe dt of the ‘ns sow make lear dha reas le i vi is Tar ‘ele daclaton of duty of ere wher pica danagesdely camel Assy Scanned with CamScannerBingham inthe Coa of Appel eision in Cpar Industries Pe v Dinan (1989) 08 £65 66s enoghtat te pinehmcestobe (ot ofthe whale world) he pein th whom te dnd colidedor bo purchased te offendag pngerber™, Tis psn ws cotirmedby Lord Oliveri Airply'y Brentwood {1991} 1AC398, 486-487, din Cope Indes Plew Dison {1990}? NC 65, 635, by Lord Brandon n Mobil Oi Hang Kg Lad Hong Kong United Doky Le (191) 2 HKLR 62, 7-78, nin Alcock Cf Combl of Soh Yrs [192] 1 AC 310, 45, and by Lard Keith in he sme ase 396. Aller alone might ase why should vit diel ljured by th defen ‘agence be requod w show more than reasonable foresecaiity of haa? The ‘sendahaswaderaen an ey tha puis ie a kof asin mse deny ithe is ot ef The ie has ben the victim ofthe defend diet aesont foc! Neier poi ae policy esd come ino the dieusion, ‘Ofcourse, for dy tobe imposed acta physi harm personal inary or rope nag) tus be esas. Azd ofr astnce, depression, distes of sales Jo mt suet a day of xe. As sted by Depry Judge Mots ia T » Kan Ki Lane (280) 1THKLAD 29, "sro des oot sundin dmapes..etherdo the hr ings whet fom bane, tt cas, hun sufteed os result of evey zou let scp. Nie it suficiat that there bea pasty of fare arm, as for ase wih plewal lags asl bythe House of Lords in Rove! v Chemical & Isang Co ‘Ld (208)14C281 ee 22 aoe. Elin in terms of coxvetonaldty of care terminology, where psi kms rey cad by he dfendans eligent conde, the necessary prenimity iim "he fit tht damage eae to pesos ike the pliiT was a teasoably fee ‘coseuece ofthe defndan’s negligence. In te words of Lard Oliver fa pyr ‘Bremond inthe saighforvard eas he det infliction of pial ir yew {We defn thee is. med to lok beyond the foreseeabiicy by the defend fe ‘elt in ere to esubish that hei in a “proaimate”rlaonship with te pli”. Mores usicean reasonableness and pole considerations ar also impli Mishra coos of casein wich thee will ever be any usc or policy that juss dpa cy inured pani ofa duty of ca. Proximity, justice and rezonbleas, sopping plicy considerations are implicit whenever he plaintiff isthe vino be defeats ie iniion of injury o damage, nison his bis thata car driver oves dy of cart passenger, pedesansand okt ‘ar divers « manufacure owes a dry to eonsuers, a doctor owes a day tps ‘otter owes a dy to eo-trkes 2 sperma to his fellow players, et. In nh et, psalm sa reasnslyfreseate consequence of eaclesscondct, an sin ‘inocu dey, nothing mor eed be proved inorder to establish duly ofa. ‘he day of ae of car driver was socinsy put by Keith JA inte Cou of Ape ison of Chang Kin Ping bo Cho Wing (CACY 252/889, (2000) HKEC) arash bythe Cour of Fil Appeal at (2000) 3 HKCFAR 333): Inthe noma couse of event, the diver ofa motor vehicle owes a day to ke reasmble cfr the safety of ther raduses. The day o tke reasonable ce cxtnds not merely to how he dives the motor vehicle but ls to where sia the pesos to whom the duty sowed includes all oad-users, fe pedestin and bystders ac wll ax vers and passengers DUTY AND FTSSCOPE: DUTY IN RELATIONTO CATEGORIES OF HAR. S212 Theevample af product ability et ibility nd coum poeeton a, or obvious reson, mater of ingernt silencer, inpariclarine mas-consumplon seit suhas Hong Kang. Unie may ster deeloel eames, in Hong Koog thei compres sary eine to ‘et eontier A conse ijred by defetvely manufac procul must ook a teceasan aw of maigence or protectin. Tain erthe moment the wider inpinions of Danophev Sinenzonasaempig peal et ord of een paricalar in repute pyc damage he cases aso inpran forsceraa impact o the Iw of produ lah Fo he is tie, as ‘sop ht manufcturer would be lable consumer fr parson esa fom a eeively made product, eventhough there may ot be a eotat between the ‘unfctrerand consume, Dongle Stevenson coins provieth al oudtion fete nf roc abit in Hong Kong today. I pea bys fom 3 eal shop a pots, be it an aplisace ofa medicine, an i chses jy Beau wat weligeny ‘unico improperly Inkl, the ight fo recover ames fom he manutatre (ithtom therein contit derive rom te case of Dg Stvecon, ‘is war the rezoning tht supped the Finding of bility ofthe manafcnier of ‘sexe spy for injries fom an explosion afer wse in Lam Mo Bum v Hong Korg ‘enol oLed(2001}1 HKLRD $40 was the zeing tat soporte te Fg of ray oar avod by the manafectrer awe a thee of on improper belied ‘nie sda th Aca deny of Perarmig As, whee theplait msiin who iad ‘eect sued pemanont physical and pychiasinjuyinKristan Bowers Pili ni! Eminem Serce id (HCPL S8071996,31 uly 197) Wiscler om his ese tate dt ofearecanappyequly tthe sppli, andi teeta of defen redo Tn sich css, the day of ar era ill be reasonable foeseaility of bam, squid yay other oviderations. Thal is because in sae ese,thepaeiThas ben ‘evi ofinjry del inflicted bythe defendant cars enact. Inllon Keg, lieth UK, hee so statutory framework forconsume protection isn 20 yer ioe the Law Reform Comision of Hong Koog completed is "Report on (hil Listy foe Unsafe Products" implemented, the proposed reforms woul give ‘env igs consumer against manuficares nd spies acludng height oe ‘a pesoml injury damages and the right to se for damage tthe podut itself onan ‘sent abity basis. However, no leitive ation bas been ken onthe eat, tok frietiebein, consumers mast contin oes thecommon aw when saterng ‘guy cased bya defective product. S213. Pysea injury oF damage no diet caused ‘a pica damage bas ben ured but the ait "eaightfrva ee Lod Olver em, the il ange of duty exits apy. The paradigm eases where the psi age has been brought about indict, nomaly through 2 tid party acing indgndeny ofthe defendant bt oer hora the defendant maybe some cont Unlike Aes fret physical injury, here the imposition of dy of ears ot so obvious. In shes, ter may be a nee to consider ater iss, and forse of pineal unas alhough a necessary condition, snot suficet fra duty of er The cou wl ‘mire proof ofthe necessary proximity 36 explained in Hv Cif Conable of st Tes, and wil expicily take int account coasiderations of usc and eases ‘ail as explained in Marc Rich and Mil (Home Ofc Dorset act CoLidals fils Scanned with CamScannerfee rcorcu DUTY AND TSSCOPE:DUTY INRELATIONTO CATEGORIES OF HARM 193 ino thi catgoy. Gent indteminstntre of eanceps sch proximity use reasonable nd poli te excomesof ver inthseazgory wil be much mre dik ‘oro than hoe whee he en dant rely enased the physical dara. ‘Luen Hing Fat Goong & Fishing Ftr Lid yaan Chen Ming 2011) 14 HKCEAR \sisseh anon sraihlored cas, poduing something of ground breaking decay "he Cau of Fin Appel inthe duy care ved by employer. in this ase the defekt fry omer costed wi copay trea ane of ts mchnes, work ht vas = inh dngerous. Ascaris xesions the defendant ete pal ck aed ead ‘quien othe contacto do the wk, etupmen that waster safe bu at Sesto nireenein racemes soca econ npa cea eae ee cee ees oe Zorcineernereeayanomnce cart petite et erie netintmd Soccer ameter senor ches tnenraietnenece sire a arcane sapnemromente ei oe ren ere meters teen ent Saeenhneneeeee ermine Sec enim abe as meen tetey moe eemtneman cern cnipnceenan int ene Serre snore crime beret ee Secon serene trates ila ete el 1S oeecra lettre ain le Seimei nerien rome cote tert aren seg cones feseshity principle lone. tn Pret v Clin 1998] 2 loys Rep 255, ‘sty sper epligsnt iepetion of an ire tht rbd and ince the sistas ound bythe Court of Appelt have del cazed thin tie (iialtoreconile hese decisions. Suh ine cal distoesonsnem aii ted eno fom notions of utc, adit may well be qetioned whather the ‘hy eminntion which ia oat sucess denies ability saad no fsck sible, Nonetheless, the cout dession on wheter the damage ‘icteric infted may well pro to be dterminativeof be oom fees (2) Lien Hing Ft Coating & Fishing Factor Lid y Woon Clue Ming repeats somthing of expansion ofthe duty ofc of employers of eres, and Tes ehange ts andeape of ables ia he Hong Kong Werks. as tea been applied to impose a datyon the employers ofan independent ‘eanncior ona construction ito en employee of that indepen! cotacior Injured bcos of an unsafe system of wok, in circumstances whe he ployee pve insructons nd kept foreman ons osopervise he employes of tie independentconaco, and ought to hae known of te uns sysiom being soés0e Gaucan Som Prasad v Hin Wh Cansrucin Co Lad (CPL 23982009, (2011) HKEC 1011) And it was applied to impose a duty on the pesor of a warcovee lo employers of is independent eonactoe who were opering fli ear by the warehouse operatorbt wed ecordingioan safe ‘prem now to and under the entra the warchoore operator Lan Pak ea p Tz Pig [2016] 3 HKLRD 139 (he warchous operator was oan to bein beach of day fr fang to povide fli vac conrolesen he work sie). When ie duty aise, isimeeta dry to wane ema’ semployees df he dangerous system being sed, oo lke same measures to pete! he ‘aferystem from being sed However issabmited that Lun does tre "new unqualified duty owed to emploecs of independent conto. The tel eter, in parca proximity and justice must be slisfied onthe face ofthe pala case. Any sich duty will normally rze ony in ‘iceslanes where the enplyer whe lat he equipment or exercised some ‘npersory contol knew of te angers practic. In this sense i Tr Kuery Tn Che Fu (HCP1 89672013, [2015] HKEC 2226), whee the cour founda day ‘fearcbut no brea, vas probably wrongly decide, Tere was evidence that the detent o is staff conribted tothe danger or ha knowledge that the ‘pipmeat it lent would be used bythe contractor's employes in a dangerous 9. Forthat reason its suhmined thatthe case, comet ints outcome, di at seat the coniions fr dy of ear sou in Len (©) One observation hat can safely be made is that the significance of Donon » ‘Stenson as been greatly reduced bythe emergence of promi, juice and usu and Questions (0) OF cous, te question of wheter physi! damage is dtelly or indcty caused bye defndan's egigence may in islfbe controversial Ferinsane, in More Rich & Co v Bishop Rock Marine Co Lid (8.3 above), was Be ‘sito te moran widen tbe bod, ina leaned. vp but dieigued state, was wade fer Lata LI she nary Vstinaierenlight than thevistin Aloe seg itotsaseparnte, post cciderteve, bata vsitnot ony identy te body batten thesarysofarastheappelnt asconcemed hole athat tage didnot want—nlon ‘a ues thit—tobbeve ht br il wa dead” However, there ws isi proxi in Tyler Novo (UK Lid 2014] QB 150, where the pa dot wines ‘ecient n which er mother was nue but i wites her unexpected death weeks tt tts oho jr suereintbeacident The Court of Appeal wet eoncemedaf ‘ioumstrces were considered a sats theaflermath rien, thea in pip 02 clams coaldbe made wos ay enporl esticions DUTY ANDITSSCOPE: DUTY IY RELATION TO CATEGORIES OF HARM 199 ‘ese of reasonable foresccbilty of harm is very much a ve sue in eases of eine injarysutered by secondary vitns ati sease pychincinjry cases arto ‘edsnguithed fom tos of physi injury, where eso foresee bam has rato be a rater strat frwaderitecon fer the pi prove ‘Incase involving secondary vitins, in assing wheter pychinse ify was a sal foscable consequence ofthe defendan’ negligence, tsa beasuned athe ‘ais pein of easenale or soma frit (McLoughlin vO" Brin). it werent resol foreseeable hata person of naa fritude wuld have sled pyc jy. wil lin proving ty far. Novetess, fom peal penile, it flies tt fa person of normal frtude woud foreszeably have steed pyc jy tea te defendant is Hable fr al ofthe pins peyehntie injuries, however tare, even i triggered bythe pints peel siszepebity ("you tke your ‘isms yo find hint™—dsewsed at 453 abo). nsec the normal rina requrement des otaply whee the pits prinary siti In Tv Kon Ki Leu (2002) 1 HKLRD 29 ($2.21 above), whee the pai, 2 Suk, sere psychia injury as a result of the defendants negligent disipie ‘thos te court itd Page v Sn in suport ofthe proposition tht, the as of a onary vt, is at “appropiate ask wheter be ies person of rary phlegm. pie eed akes his Viti as he ads hi”. ‘aor te question of esocable foes ito be considered adit aking ina cout al that has boppened (eee Loré Goffin Wie» Chief Contableo th Sou Tae Pale 1995) 2 AC 455, and Lord Lloyd in Page v Smith bor), Thi, was ele nur to dhe pit easonaly freer, night ofthe magnitude of the ‘ea hat he wiessed? S023 Rescue Formy yas, it as thought ht person who was atively engrged in ssn priary ‘ics fan acien nod bythe Sefenintsnepligecs, who the ule psehiste ‘ajay, woud be treated as primary vein or parcpant Tati asa ecu, be would be els day fears onthe basis ofthe reatonable foreeebliy af psychi injury (ce (hick Bish Rana Board [1967] 1 WLR 912). Lcd Olives approved this view in Aca Cif Constable of South Yrshir (1992) | AC 310,407. 1 eae del under ‘asain in Whe » Chief Constable ofthe South Yrskre Pole (199) 2 AC 85, unease aring out ofthe Hillsborough fool stadium dsaste Inths caste elim vasrapht by police offices on duty and tending tthe injured and dead spectators, 52 ‘of wih comer thm suffered psychic ir. They sudthiremploye hplce Aeytnen, or its neligence in Inving mismanaged the crowd contl operations and ‘ade distr giving isto el psyehiane jury The ge at first instace dsmised ‘irchins holding no duty of care owed but his decision was reversed by the Court of ya Lord Steyn eferedto what he deseribed asthe oaly English decson at spparted epi argumest, Chaick v Bish Rts Board 1967} 1 QB 912, Ina ase ‘emsca, Chadwik, had eatered a wrecked ralvay crag elp th njred at pat ene wasariskthat the carriage might callpe, He wa founda be ones duyafexe ‘ye defendant In refrece to the eae in Chadvick Lord Sey sd (nt jade Findings th rescuer nd passed the tesbld of being ia pasos gs bt his psychiae inary was caused by “ie fll otro his expen” te be was presumably not alvays in personal danger... too weld accept tat Scanned with CamScanner‘Chadckws conceded. ano authori forthe propeston hat pesan bo exer expse imslfo ary pers nge and never thought hate wa a Peon dnger can zoe pure peta jury a a eseuer. In rdf ent onpenatins for pare pseu rns escoer its at ecesary to sabi tt 1s pyeaneeamon was cased bythe pereepion of personal danger. And alr Jigs ed But inodro contain he concep of resover in resale ‘wus forthe pupa othe eee of eompensation for pur psyeiat arm he Hsin ust ot ast xi the theo requirement tht he objectively exposé [safe ng or reat eed that he was doing 0, Without sue ion ene wouave tunedin spectacle, while bereaved relatives aenotallowed ‘orener asin Alcock shally carious spectators, wh assisted in some periph ‘sayin te airathofa dis, ight cover For my parte Ksitation of cal ee ‘rca anger pony inti special tation meas. ay judgmet ‘tal te an umsaraned exesin of theft uphold the claims ofthe police irs. 1 woud dss th agent der tis heading. Given the requzenent of beens endanger rescuers ar effectively being tet ie hn primey vn, “Te cour sk costed he pin angument tthe effet hat thee employer, be fda ted he hia x pci or ty o take care forthe aft 8 wor Get ‘Chap 9) including ty agua asinspsychini injry. Although the stor play of stro ef ta an employer duty osafegnrd again injury ein Some eons cede x ty to safeuard against some forms of work-related see (se iv Nrambrond Cony Conne (1995) ICR 702, Hatton v Sutherland (28) | WLR IO) corde tata of dry of efor payehatcinjury applied inthe as Te pinils colds sueceed beet they ould ot satisfy the eter i dain ‘Meck Chef Coble Suh Yorkshire S224 Other developments ‘Ate and developing caegry of secontary vstms concerns the scenario whee in sues psyeiti injury in sponse to neligeat medical treatment sued ya loon. a Sev Hampstead Heol Author (1998) 5 Med LR 170, the lai ‘arsuednemetoyle arin an wa amd to hospital The plain sedate ‘esd an wines the salsig an deterioration of the son until the so’ death 495 Ise The cout joa elit clam for a day of are becseit found hte yciricinjory wasnt "sbal induced bat wa casted bya processcontnung eee ime athe bese, aswel ate aprecaton of the medial negligence some onside ‘ime ter afer the igus. However allioogh the plaisfs laim was rejected he com seems to have contented that a duty ofeare could arise following negligent xi ‘rxen et woud era "snk induced” psychi jury, for instance on seinga ‘nespetedan ail borible consequence of surgery gone wrong. Similars ‘spent suport te decision neg v ave Health hart [1994] Med LR 8 swurd pecan dango the parents of til-born baby, whose dele ae ands fhe defend eal author vas performed negligent and in crcunstsel ‘ics and "pandemonian. Asia ret was raced in the Singspore High Gut sion in Pang KF Lin Dj hig 993]3SLR317, volving claimby emer of acid wrongly weed by doctors. Following the neligent weatmect, the chil’ hh “ell over a prod of tee mock and the child de. Daring this period the mabe atc oer the hid wha vasin severe pin and agony. The mother was four lt DUTY AND FISSCOPE: DUTY INRELATIONTO CATEGORIES OF HARM 281 sa enkgos extension ofthe Alock pip, And in North Glamorgan NHS Trust v Tete [00] PLQR P16, a mater ecovered amages forthe plbloal ref econ ihseslfed asa esi of winesing, expesiencng and paricipatingia he events ver Satna ending opto ber bay's death eto the defendant negligent set diagnos hi ‘ton The court considered the 36-hour paid to be one horiying event, a single Aamnentexpince, and was to be distinguished from tho eases involving gral ‘wl nthe miad The cor eld tht the pit’ injry as sock induced. Tas ‘ing consent with te decision in So Sow Mon» Hospital Authority (2001) 1 RLRD 280 to take ito account, inthe award of pain and safering damages for the hiss oy lajres arising fom the negligemlymanaged chili, the pain’ sina steed upon witnessing the sffering and evetal death fer chil bmn ‘eee dialed asa result of th defendants negligence. Nonthels dy of cre was tite a Mong Fg Se » Hosp! Auhorty(DCPL 1127204, 2005] REC 219), ye ‘terse ofthe negligent medical weament of loved oe. The pain, he wie ofthe ‘ered win safloredexesively and ded alogedly because ofthe dtenn’s negligence ig fom 3 misdiagnosis suflered psyciavie injury. The coun distinguished North ‘lnergon NHS Trust» Wes and hed thatthe plains pyehaue nary was sot odes but was suteed sa resltof gradual asals on her mind overlong prod fie (bar moths) ashe wore boat ber husbands conn. The court alo rected Seapmenthat th pai asa reser, wat primary itm because onthe autor of hie Chief Conable of South Yrshre (5.2.23 bore), She was ot at any Sine exposed lagoon danger What moons o shocks obvouly mater of jadgmantineach ae, ‘itr etgory of “primary viin’, eae by Lard Oliver in Alock¥ Chief ul South Yorkshire, sa parson who belived be was about tbe, ord bea, the inary cause of another des or ijay (he death or injury in fact caused by the ‘Messegligence).Itmay bea fre requirement for hiseatgory that sucha person mst ben preset al the scene ofthe acide! Hite v British Coal Corp (1989) QB HO) Homeeatough not pecially disused it became dub whether his category suevied the House of Lords decision in Wie Chief Conable ofthe Sout Yorkshire keting asi id tat the cls of primary vitins was lo be sestited to those lyn or inthe range of fereseabe injury, while al otersare secondary itis somuts the control reiements (npr sx the dof Lord Steyn at 497). ‘ering 7» EserCaumy Cowl (5.2.2.2 above) may have eopene hiss. Ther, ‘eto Lads, inefsing to ste ot the action, didnot rae ut the possibility that he peas eoul be cosiered primary vit, in creumsane wher he pret, however ices fl some responsibly for having broogit the abuse in comact with thet ‘lade, Seals te dsision oe Singapore High Court ia Pang Kal Fv Lin De hing oe) wher te cor relied on similar essoning aa further ustifieaion fora ining of aya en, onthe bai that te mother bad ned harel fo the negligent medical ‘enna ecived by her child, ‘Anise that seen e-srfce is wheter a defendant responsible forthe accident ‘oa mal ders only, because the prinary vain was heavily conbuoiyneglizet, ‘lod sonal bear responsibility forthe fll damages sere by the secondary ais inury vii. This was an issueaisedby Lord Olverin Alene. InLe Wl Lok ‘am HCPL 4762010, (2015) HKEC 1323) (below), Deputy Judge Spon Leung dened eiaton consider th sss, which be viewed pli ssc onthe Fog tat he ‘ncn cae was not asutable cas in which take up th sse-Iis submited that he was trio dS bt that itis not aly a policy iss. The dry ove by the toreasoris not Scanned with CamScanner2m DuTYOF CARE ec of towed tote rimay ven tis oned ety othe senna vi ne the eonition ore dy ofr aes ‘Unt copartve recente wero reported lin forpsyeiaucinury damages ‘erseondary viens in ong Kove Previous dias ofthis book speculated that be dh fees might be ened one tsi of socal condos and lca cutre—a cele ‘elssateto ckrovlge eta ines. Rec years have witnessed changeinthe ss ‘16, wih cass ent eee cous wi soa requenc, hough in many fe ‘Sse thee ite oro deus of be day of eae principles, in some because ably ‘waded orth cousin assumed duty fea (sees Eyre Marcelino NLoRG {GCP 125611997, Coll Star Ferry Co Lad (HCP! 49172000), Tse Lal Yn Incorpried (ners offer Howe (HCP $2997, [1995] HKEC 825) and Lhe Ye v Ng Chi lag (CPL 4004, 2008 REC 1868. 1m Zee Mish Lok Wal (CET 4962010, [2015] HKEC 1323), the pli pn reaching bone, oan ale on ber dar tote ft tht her 12-yearo son (Hom) nd been ake to ospia. She ras othe hapa and was informed that er son bd ben crcl injured ina afi acidet. She was ot allowed to see him ding the our ‘envency weet wr she wale nearby Shed ot see him unl be ed fourhous Tne. Before consderng te cout ring its instructive to read the courts dseionel the scene encountered ye plait (66 tne preset case Lee, without expction sw te not posted on er doo vpn eum frome job up 1 he aa. She arived at the ospital shorty but ‘versa abet Hons velbeing was ot cleared. According to her, she ma ‘ought to whee Hoag was undergoing resuscaton and emergency eaten. Sie San sl of pope teaches foe Hon’s school ieluded. On the one had, her cebushnd i er ttt shuld be he cse tha Hoag could be saved ore he rts would mate tying nthe other hand, she saw a urs holding a pack ood ‘nd entender, which as ive tobe the operating hee She sensed ‘he sion vas ot ood She wa ld tall would depend on the wll oos of og, Seva nerdy deter hat she had tobe prepared for he wore. tone sages mated ors scr ei, She was perplexed and resorted to comet ‘ying. Photographs depicting besiting on he oor ofthe hospital wit face baied liner ins were shown inthe susequea! newspaper repors 51. Lee ase tse Hong we already passed ay. That was approximately 4 ours aera tthe hospital Sh ound him yng witheyes closed. There was 1 et of bod on is face and bay. His ace was swollen, and one of his eg vas ile. When she sok ise lac came oat oF is mouth, She palled downs hte shat cores oi. Sb wasin denial and cried hysterically She as edi» other oo est oh. ‘The cout sceped that te pains mental injures sasfied the seqlemens fe sean as tot inthe leatng case autores. Moreover, he attendant {eone of eaten sated the aemathreuremeat: what she experoned "asm ‘mz infomation fom hid parties bat her perception by sight and sound of wht ib Iappted snd what vas bppenng to Hong as a result of he accident win hous of scien” On whether th injury ws shokenduced, given the pits own evident ied nt fel anxious or bars by sexing Hong's body the cour a DIUTYAND ITS SCOPE: DUTY INRELATIONO CATEGORIES OF HARM. 209 ccemust exerci common sents in nderstaningthe snr al thine nd place Ine wl sees of events experienced by Leo in hse 410 Shou, nt ingle ‘met ine could be fozen or stad aston, No ald he moment of Lee Fn eing the body of Hong, Others, it wile too aoa view oak abut ‘ata relevant to be ken into acount, contrary 1 what th ub say as tied shoe It ills be too marrow view taken apg the eal et of sng which isa mater forthe cout. ‘nie cour’ vow it was enough hat “Lee's experience from the momzat when she saw the satan dor ofthc home wt th momar sh ally otto sce Hons body win Sof he acieat materially conte ohepsychiaieilnes lalamTIn Bok Boscov Dr Chan Yee Shing (HCP13692010, 6272012017] HKECO6, ‘epi were paren of 1-montld by wo sure ex-wound iis th ngs ‘Aber sekingwestnent rm th defendant dct, the ager developed gangrene resulting inanpunton of part ofthe finger. The pla wee presen whan the ger was mong and expred ar gangrenous. They sued the defeat fer pyc jury tomes ued se rest of tesing the wnsrapying ofthe gngrenoae finger and ttaligt tir co inte esng pr of ecovery The endo ited ity, ad turbo pias developed djseat ierder and depressive disorder. Taespoase to the argent that aly some of the psychi injury was cusd bythe ‘eu of inesig te gangreous Finger and te ned for amputation, and hat sobsequet ‘peta breverieat wa also caus, such that danages sould be reduced repealing ‘orient consequent thinmedtsbeck, te our delned tomake aredotion. Inbeceer's view: "Where th harm is invisble amongst cumulative facts, wheter 5 ‘aimed by medical evidence orwbater medal cies ie nadequt to eal the ie osency ofthe causes, he arteasor who has made 2 mate cotation to the ey i ale forthe whole” Te laa were award fll compensation for tir pa injures. The our ied Hermon v Bosley (No 1) (19971 AML ER 57 poicy eis in sopport ofthis psi: it wil avoid the court having to "eszrch int the ‘ies ofpyhiare medicine in order to discover wheter part, andif'so what par of be Sai ilness shuld beaseibedto bereaveneratertan te traumatic experience ‘owing he cde and “even if his ness if pany atrbubleto the pala! crasgocces of ge and bereavement, it was neveiless caused by the defendant's rn ac ad th ole reasons which limit the seape and umber of thse to whom a ‘ay oved do aot provideeqaljusifetion orig the damage covery thse sons" Ins pobbly fhe to say thatthe defend’ snsions prevented fll ation of ‘iapran festue of the as tht may have lta difeentcatcone. A gangrenous ager sifted by childs tebe thing but dat ot seem to measure up tothe Slandsd of ie Shek euiements recently explained byte English Cort of Appeal eur an event fuwaserceptoal sudden snd hosing. In ierpol Mamen’ Hospi NHS Fondation Tru ope [2015] PIQRLP20a husband found his wifi hospi atoiBesiae, afer ‘wdeoing« ystrectony. He found her unconscios,comeced to varius machines inland monitors, sulerig fom setizraa, svllenand dita and hig te paras of the Michelin Man", a condition caused bythe defendant's mil ‘slg. Nontless the cout found no daty because the wil’ appearance was oot taped or exeepion “In hospital one must expect to Se poten coasted 19 achinesand dips and .expes oe things tit oe ayn ike oe". Moreover. ete Scanned with CamScanner26 puTvOF cane asne sudden sprecintion of never besa thee was eis of eset ing itoay sccultion of ul asa nthe maa’ ind. Issues and Questions (0) Dv Eas Beare Conmuly Helh NHS Ts [2008)2 AC3T3 (5.14 sbor) old yet another Kn of fct pate. Parents were wrongly sispeced and cused by bea wrk of abesing ter chien. They broght ations in ‘elgenee opener By majority the Hous of Lord found day ‘ed aely on te bisa rs jc and reasosblenes ad plicy nsdn. a doing oh cart ackonledged that can eae owt. ‘ear sting he erin st down in exes Uke Alek» Chief Conta of ‘Sout oda o forthe, 2 case ike North Glamorgan NHS Ts » ars (above. (2) Therequiemen nied Lords OlverandAcknern Alok theft the pyc iar ms be shckinduced wae doubted by Heory LI inthe {Couto Apel sion in Wie v Chef Constable of South Yerohire Pole [1895] QB 256,271 and by Lord Gof (a dso in the House of Lor. Tis reuiement las served 2 2 farbereoouol mechanism to imi the css of Clima, bt bas ee iia a outmoded and ot of sep with «moder ‘edetniiag of the stolgy of psyeiac injury. ste distinction betwen pry nry arising fom he winesingofatwaunatc event (post-raumac re dora) ac pseu seed rma peologedbedie vig froma pul ppreciion of hat has happened tthe loved one (piologe ‘pedro oral dsion? The English Law Commission nis Repor.a Lis fxPsjehiue es (Law Com 248) (1998) recommended Attiducemeny shack a logerbeareaizemen! ody oeate Pat XT), (0) The eqivemest of eagle psyednte injury is roaacly imposed by Hoag Koog cous. In Iriag Maro Wilt» Aan Chu Yeung (OCP. 22420013, [2016 KEC 6, nsuiciet medal proof ef psychi aur ‘asf clin of water wh hd witnessed the colle of et gx tte Hersevenyearai ea, Nosetieet, one might question whether Ris 8 sii equzenet The dsison is arguably mores mater of dere an ‘ods ot exe geo iste, shor of PTSD, esecaly login ‘aditon of ref or dirs, worthy of compensation? In the cure farm, resovery fr pein injury isi he hands ofthe pyehinty proesion, and as was pointed out by Thomas J (setig) in Hn Sos ada Heal agement Uni (2000) NZLR 179, this i spoalous: Wanever tht dlinecootes to identily and ame a a payehiie ess bezosesthe as bourse damages in thir. Ye, theres no necessary retoshp beeen he fanamestl concep of reasonble fereseblty nd pyar’ clsifeaton of psyehiare Mness DUTY AND ITS SCOPE: DUTY IN RELATIONTO CATEGORIES OF HARM. 208 (Profesor ne Salton as deseibed the hw as sated in lock inunianring {um "Tat a posnt cms can um on he requreent of eet fave andl iguaranzedte produce cate sia disepusbesightoste ‘raters of Hiliboouph victims tuned sway because hey had no mare as ‘wor love towards the vein? fue cases wilt ot be a ese sight se relates sabbing to prov hi espe lore forthe eased in der to win money damages and fr the defendant to lave to ata that tegument” Seo"In Restaat of Tr’ ansi9y in Fromlers9f Liable by Bis, 198, (6) The English Law Comission init 1998 report econmended hat thee is no eel ost aye reauremens that the lait was preset at theseene ftbesecdet ahh pli prceivedthe acid firsthand tooghhis ‘msenses Part 1X (1) resmably,hese mates coulé beef he eatin Aetemning the aeton of easenbl faresebiy of syehii injury. The ‘Cou of Appeal of New South Wales appear o have come to similar ‘anchsion in Coots» Goverment insironceOfieof New South le (1995) SGNSWLR 1, meas concerning cilren who wee ot the Sen, nor the aflcoath fe necient in which theater wa ill (6 Te aw in Ausra is considerably advanced compared to hat a England and Hang Kong The High Cour of Aveta reeled th eqiemeat ht the ‘shin shuld hae directly persved the cide nding peychi injury, ‘nto reuirementthat the psychic injry be shock induced: see Tame vNew South oles (2002) 211.CLR 317 and Armas» Auzraion Stine Pry Led (oo!) 23 WAR 3. Reasonable fereseaility andthe cone of mighbouras fwclaed by Lord Alin in Dovogle v Seveson have replaced sat ‘erp and latonl pre coudions sequen Alcock ChiefConsbleof ‘South Yrkshie, Fora consideration of tes developments ee Tndade (203). (7 Areeourt of a sited adja in manes sch asthe degree of ve and aff hat exited between a vim of psychi injury and he eave or Toe ene whose death be ss witnessed Is love and aection eve eapable of being proved ina cour of aw? (9 The House of Lords has held tht on appropriate evidece, body inary can nce pyeiaicinjury (Morris vKEM Ral Dutch tines [2002}2 ACS). neve, the distinction as implications only forte aplition of te Wars CCneaton and the ait ofaitins fr injuries to passengers (Fora discussion of psyehiaie injury cain aising out of the orgie. conmunication of bed news, ee Tf (209) p. 103-13 (0) tnsome jurisdictions, the issu of aii fornervons sek has been el with ‘hoop eile. lathe Austin States of New South Wales, the Northern ‘evry andthe Avsalian Capital Terry, he mater of prosiniy and the category of persons to whom a dt of cares ved have cal besa spied Inde legislation. The extapor of person o whom a drys ved ices te yarns and spouse ofthe person imperiled (wheter ont at he cee ofthe ‘ese andanyotner member ofthe fanily who winessedthe accident see ‘New South Wales Law Reform (Miscellaneous Provisions) Act 94). Scanned with CamScanner206 DUTY OF CARE (11) Harvey Teff (para above) makes the argument that injury in the form of psychiatric or emotional barm should be legally recognised without any qualifiers, in the same way as physical harm has no qualifiers. However, acknowledging that “in the English context, itis idle to suppose that the liability threshold will be extended without a significant, countervailing precautionary measure", and as a pragmatic response to the floodgates fear that has always fearured inthis area of negligence law, he suggests the introduction of a liability threshold forall personal injury claims. Minor transient harm, whether physical, psychiatric or emotional, would be excluded, Tapered awards would be available formoderately severe harm and more substantial awards for the more serious. For psychiatric and emotional injury the standard would be “moderately severe mental or emotional harm”. In this way, “technical psychiatric definitions, though valuable as indicators, can be subordinated to a more broadly conceived notion of harm measured by intensity, duration and functional incapacity”, (12) Exceptionally, ina case that pre-dated Alcock, a duty of care for psychiatric injury to-a secondary victim was recognised where the plaintiff witnessed property damage only in that case, property damage to her house, which was destroyed in a fire dueto the defendants’ negligence (Attia v British Gas [1987] 3 AIL ER 455). This case appears to stand alone, decided as it was on the basis that, since the defendants owed a duty of care not to cause damage to her house, the psychiatric injury was treated as damage that was not too remote (for criticism, see Jones (2004) p173). (13) Ithas been suggested that an alternative and under-utilised remedy in secondary victim psychiatric injury cases is the action for breach of statutory duty (see Chapter 8). Where an accident is caused by a defendant's breach of a provision in am ordinance or regulation (as often occurs in work site accidents), a breach of statory duty action would circumvent the onerous requirements imposed ina negligence action, in particular, the proximity requirements laid down in MeLoughlin v O'Brian and Alcock v Chief Constable of South Yorkshire (see Dunford and Pickford (1999) p.4l). (14) Perhaps more than any other area of negligence law, the duty of care for psychiatric injury is circumscribed by policy considerations. Indeed, this area of the law has been described as neither “entirely satisfactory [n]or as logically defensible” (Alcock v Chief Constable of South Yorkshire (Lord Oliver), and as “2 patchwork quilt of distinctions which are difficult to justify” (White v Chief Constable of South Yorkshire (Lord Steyn). And despite the abundance of court decisions at the highest levels, it is still not entirely clear what these considerations are. For instance, is it a fear of fraudulent claims, or a fear of a floodgate of genuine claims, or is it a distrust of medical knowledge about psychiatric injury? Scanned with CamScanner