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Thus, under Malaysian law, Tim can raise the defence against Bill on the point of Ex turpi, ie. Illegality in drunk driving, since Bill encouraged Tim to drive dangerously. Similar in the English case of Pitts v Hunt,  where the Plaintiff encouraged the D to drive illegally. Although there no Malaysian case at the moment.

Moreover, Tim could raise the defence of VNFI against Bill. There are 3 requirements to establish VNFI. Tim msut prove assumption of risk on the behalf of Bill, in the English case of Nettleship v Weston, the driving instructor had voluntarily gotten into the car in which the learner driver met in an accident. Based on the facts of the case, Bill voluntarily stepped into the Tim’s car, therefore voluntarily assuming the risk.

Furthermore, Tim must prove that Bill has the full knowledge of the risk. Such in the case Morris v Murray in which the pilot was too drunk and the passenger should had known of the risk. Despite the facts of the case, it is a subjective test in which Tim must prove that Bill has full knowledge of the risk.

If the Plaintiff does not know about the risk, but should have known thereof, that it is said to be VNFI but may alternatively be CN.

In the argument against Gary, Gary was not wearing a seat belt, Tim could raise a defence of CN against Gary. Similarly in the case of Froom v Butcher, not wearing a seat belt can be held to contribute negligence on the behalf of Gary.

Moreover, on Tim against Gary on the blood transfusion, Tim could argue a break in the causation, however in R v Blaue, he must take the victim as he found them (egg shell skull rule).

However, Tim can argue that in Re T (adult treatment), he did not give the full consent,  as in the case of Re  T she was affected by  her mother, thus, the court held that she did not give full consent for the refusal of blood. Therefore, Gary could argue that based on the case, he was influenced by his religious belief, he did not meet the requirement of full consent.

Therefore, on this point, Tim could not raise the defence against Gary on this point.   iiiiii���M���

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Intro:

Psychiatric damage is also know as nervous shock. It includes all forms of mental illness that are medically recognised such as neurosis and personality change.

Abbey v Steve

Issue: Abbey was involved in an accident caused by Steve which also caused her to suffer  from post traumatic stress disorder. whether Abbey is a primary victim or a secondary victim and whether she could claim compensation for psychiatric damage against Steve

·        Definition of primary victim: someone who was present at the scene of the events and was either injured or at risk of injury.

·        As Abbey was involved in the accident herself and suffered serious injuries as a results, she is a primary victim.

·        Position regarding psychiatric damage

·        For primary victims, psychiatric injury does not need to be foreseeable as long as some kind of personal injury was foreseeable. Page v Smith
- post traumatic stress disorder is a medically recognised illness

·        Thus, she would also be able to claim psychiatric damage against Steve as personal injury resulting from his negligent driving was foreseeable.

Abbey’s parents v Steve

Issue: whether Abbey’s parents are primary victims or secondary victims and whether they could claim compensation for psychiatric damage they suffered against Steve.

·        Abbey’s parents did not fall within the definition of primary victims as mentioned above. Ie : not primary victims

·        Definition for secondary victims: someone who was present at the scene of events or its immediate aftermath and witnessed or heard the traumatic events with their own unaided senses.

·         Several conditions a victim has to fulfilled to be categorised as a secondary victim

1)     There must be a close emotional relationship based on love and affection with the primary victim – as they are both Abbey’s fosters parents, condition fulfilled.

2)     There must be physical proximity to the accident in terms of time and space – Abbey’s parents only got to know of the accident after 5 hours and was physically far away from the site of the accident. Thus, condition not fulfilled

3)     The shock must be caused by witnessing the accident or the immediate aftermath of it with their own unaided senses – As they saw the shocking state she was in after the accident in the hospital, it amounts to seeing the immediate aftermath, and it caused them to be traumatised.

4)     It has to be a medically recognised illness. - PTSD is a medically recognised illness.

Conclusion: they are not secondary victims, as they did not proximity in terms of time and space, hence cannot claim.

Cosmo’s father v Steve

Issue:  similar to Abbey’s parents, whether Cosmo’s father qualified as a secondary victim and whether he could claim compensation for psychiatric damage he suffered against Steve.

·        Also have to fulfill the conditions as stated above.

1)     Fulfilled the first condition, as he was Cosmo’s father. Lord Wilberforce: examples parent or spouse

2)     There was proximity in time and space as he was brought to the mortuary to identify his son’s body a mere two hours after the accident occurred. – McLoughlin v O’Brian, claim was allowed where the mother witnessed the state of distress that her children were in 1 hour after the accident.

3)     Same as argued above, as he was brought to the mortuary only 2 hours after the accident, it can amount to direct aftermath of the accident. – McLoughlin v O’ Brian

4)      The psychiatric illness suffered by him is intense grief. It is not a medically recognised illness – Victoria Railway Commissioner v Coultas

Conclusion: not a secondary victim, cannot claim.

Bob v Steve

Issue: whether Bob as a rescuer, qualified as a secondary victim, and whether his mental incapacity.

·        Rescuers are entitled to claim for psychiatric damage

·        Chadwick v British Railway Road

·        Reasonably foreseeable that someone would try to rescue the victims and suffer injury as a result.

·        Conclusion: Bob is a secondary victim, can claim.

Ray v Steve

Issue: whether Ray as a member of the emergency service, qualified as a secondary victim

·        Ray is an ambulance worker.

·        Generally, cannot. Partly policy decision.

·        White v Chief Constable of South Yorkshire

·        Conclusion: Ray is not a secondary victim, cannot claim.

General conclusion: Only Abbey and Bob fall within the categories of victims recognised by the court. Thus, only they are able to claim.

Malaysian position

Abbey v Steve

Issue: whether Abbey is a primary victim or a secondary victim and whether she could claim compensation for psychiatric damage against Steve

·        Definition of primary victim: someone who was present at the scene of the events and was either injured or at risk of injury.

·        As Abbey was involved in the accident herself and suffered serious injuries as a results, she is a primary victim.

·        Position regarding psychiatric damage

·        For primary victims, psychiatric injury does not need to be foreseeable as long as some kind of personal injury was foreseeable. Page v Smith

·        Thus, she would also be able to claim psychiatric damage against Steve as personal injury resulting from his negligent driving was foreseeable.

Abbey’s parents v Steve

Issue: whether Abbey’s parents are primary victims or secondary victims and whether they could claim compensation for psychiatric damage they suffered against Steve.

·        Abbey’s parents did not fall within the definition of primary victims as mentioned above. Ie : not primary victims

·        Definition for secondary victims: someone who was present at the scene of events or its immediate aftermath and witnessed or heard the traumatic events with their own unaided senses.

·         Several conditions a victim has to fulfil to be categorised as a secondary victim

5)     There must be a close emotional relationship based on love and affection with the primary victim – as they are both Abbey’s fosters parents, condition fulfilled.

6)     There must be physical proximity to the accident in terms of time and space – Abbey’s parents only got to know of the accident after 5 hours and was physically far away from the site of the accident. Thus, condition not fulfilled.

Distinguish with the case of Zainab v Marimuthu where the victims were at the scene of the accident.

7)     The shock must be caused by witnessing the accident or the immediate aftermath of it with their own unaided senses – As they saw the shocking state she was in after the accident in the hospital, it amounts to seeing the immediate aftermath, and it caused them to be traumatised.

8)     It has to be a medically recognised illness. - PTSD

Conclusion: they are not secondary victims, as they did not proximity in terms of time and space, hence cannot claim.

Cosmo’s father v Steve

Issue:  similar to Abbey’s parents, whether Cosmo’s father qualified as a secondary victim and whether they could claim compensation for psychiatric damage they suffered against Steve.

·        Also have to fulfill the conditions as stated above.

5)     Fulfilled the first condition, as he was Cosmo’s father.

6)     There was proximity in time and space as he was brought to the mortuary to identify his son’s body a mere two hours after the accident occurred. – McLoughlin v O’Brian, claim was allowed where the mother witnessed the state of distress that her children were in 1 hour after the accident.

7)     Same as argued above, as he was brought to the mortuary only 2 hours after the accident, it can amount to direct aftermath of the accident. – McLoughlin v O’ Brian

8)     The psychiatric illness suffered by him is intense grief. It is not a medically recognised illness – Thiruvanamali a/l Alagiriami Pillai Diner’s Club, ordinary emotio are not recoverable.

Conclusion: not a secondary victim, cannot claim.

Bob v Steve

Issue: whether Bob as a rescuer, qualified as a secondary victim, and whether his mental incapacity.

·        Bob suffered from clinical depression, which is a medically recognised illness.

·        Rescuers are entitled to claim for psychiatric damage

·        Chadwick v British Railway Road

·        Reasonably foreseeable that someone would try to rescue the victims and suffer injury as a result.

·        Conclusion: Bob is a secondary victim, can claim.

Ray v Steve

Issue: whether Ray as a member of the emergency service, qualified as a secondary victim

·        Ray is an ambulance worker.

·        Generally, cannot. Partly policy decision.

·        White v Chief Constable of South Yorkshire

·        Conclusion: Ray is not a secondary victim, cannot claim.

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HI MS Marini, ILY.

• Firstly, the injury alleged must conform to judicial attitudes of what constitutes nervous shock, a recognized psychiatric disorder. (-not shock, grief, distress or fear unaccompanied by physical injury but a positive illness recognized by psychiatrists)

• Secondly, the person claiming to have suffered nervous shock must fall into a category accepted by the courts as being entitled to claim.

• PRIMARY VICTIM- within the zone of physical danger created by the defendant’s negligence, someone who might foreseeably have suffered physical harm but merely suffers from mental injury

• SECONDARY VICTIM- suffers mental trauma as a result of someone else’s physical injury or as a result of fear that such injury may occur

• The law is satisfactory in controlling the possible floodgate problem at the expense of the victims/ witnesses of traumatic accidents- the secondary victims in particular.

• Unsatisfactory in the sense that even though there is proximity in relationship between the claimant and the person who suffered severe physical injury, they cannot bring a claim after hearing about the accident through the phone. It should not be assumed that only by seeing an accident or the victim shortly afterwards, will cause psychiatric injury. Especially the parents of an accident victim.

1.             Taylorson v Shieldness Produce Ltd 1994- the parents learnt of the accident through a telephone and a subsequent visit to the police but were not present at the scene of the accident and therefore had to establish that they witnessed the immediate aftermath of the event. Held that the mother had a dawning consciousness that they were going to lose their son and declined to extend the notion of proximity to this elongated process. However, it the mother is conscious that she is about to lose a son, that very fact should accentuate and justify the psychiatric damage that she faced.-
Bourhill v Young
She should be able to claim for the injury of nervous shock when she heard the sound because  she was in close proximity to realize that an accident had taken place. The next step would be to look and that makes it worse, seeing and hearing the accident, she should be able to claim for PI.

Mass hysteria can constitute to further injuries even though accident was not directly seen but heard.

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LAST QUESTION

Civil law act 1956
- S12(1) if damage arises by reason of the fault of the person suffering damage, but the damages recovverable in respect should be reduced to the extent that the courts think isjust and equitable having regards to the claimant share in the responsibility for the damage.
Law Yew Seong v Chan Kim Sang [1987]
the plaintiff was 100% contributory negligent for hitting a car from behind and he was not awarded damages.
-Held that contributory negligence means the failure by a person to use reasonable care for the safety of himself or his property so that he becomes that author of his own wrong
Contributory negligence of children..
Mohamed Safuan bin Wasidin case
The plaintif was four years old when he was knocked down by a motorcycle ridden by the defendant postman when the boy suddenly ran across the road in to the path of the defendant. the defence failed.
Held that the degree of care attached to a  child should be diffrent from that of an adult. the younger the child is, the lesser the degree of care attributable to the child.

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1.    Ex Turpi Causa Non Oritur Action

No action can be founded on an illegal cause and the defence for the defendant must establish Plantiff’s conduct is so reprehensible and that that the conduct is part of the claim.

-       Reckless driving and drunk driving is a criminal act

-       Both drunk and Bill knew of the fact yet got into the car together.

-       Pitts v. Hunt

-       Bill encouraged Tim’s reckless driving

-       More than likely to succeed

2.    Volenti Non Fit Injuria

a)    Consent/Assumption of risk

b)    Voluntary

c)     Full knowledge of risk

-       Bill got into the car knowing that Tim was drunk so that amounts to consent

-       Tim offered Bill a ride and he accepted voluntarily there was no coercion.

-        Tim was drunk so it was reasonably foreseeable that he would drive recklessly as his senses are impaired and that he would get into an accident

-       Morris v. Murray
Volenti is justified when it can be proved that the plaintiff passenger himself urged the driver to drive dangerously, or where he drank himself "silly" with the defendant and subsequently agreed to fly with the defendant in a light aircraft and consequently died when the plane crashed after take-off.

-       Dann v. Hamilton

-       Succeed.

3.    Contributory Negligence

-       Partial defence

o  Bill

-       Was drunk as well

-       Got into a car with a drunk person

-       More than likely to succeed

o  Gary

-       Failure to wear seatbelt

-       Froom v Butcher

-       Refused a blood transfusion and had to amputate his leg

Succeed