Thiruvannamali Alagirisami Pillai lwn. Diners club (Malaysia) Sdn Bhd [2006] 8 CLJ 671

Information about Thiruvannamali Alagirisami Pillai lwn. Diners club (Malaysia) Sdn Bhd...

Published on June 8, 2020

Author: AmaliaSulaiman2

Source: slideshare.net

Content

1. CASE ANALYSIS: THIRUVANNAMALI ALAGIRISAMI PILLAI LWN. DINERS CLUB (MALAYSIA) SDN BHD [2006] 8 CLJ 671 PREPARED BY: AMALIA SULAIMAN @UKM LAW SCHOOL 2019 ‘NERVOUS SHOCK’

2. 1. NERVOUS SHOCK What is nervous shock? 2

3. WHAT IS NERVOUS SHOCK? ▹ Duhaime's Law Dictionary: A recognizable psychiatric illness caused by the breach of duty. ▹ Nurchaya Talib, Law of Torts in Malaysia: ‘Nervous shock’- or preferred expression now is ‘psychiatric illness’. Psychiatric illness may occur either as a result of a deliberate act which is intentional in nature, or from negligence. ▹ Alcock v Chief Constable of South Yorkshire Police [1991] All ER 907 Psychiatric illness includes all forms of mental illness, neurosis and personality change that are medically recognized. 3

4. THIRUVANNAMALI ALAGIRISAMI PILLAI LWN. DINERS CLUB (MALAYSIA) SDN BHD [2006] 8 CLJ 671 Court: High Court of Malaya, Kuala Lumpur Judge: Wan Adnan Muhamad 4

5. Plaintiff Full name: Thiruvannamali Alagirisami Pillai Status: Diners Club credit card member, Doctor, Husband, Father BACKGROUND FACTS Defendant Full name: Diners Club (Malaysia) Sdn Bhd Status: Credit card company 5

6. FACT OF CASE ▹ Plaintiff who is a medical doctor claimed damages for shock, fear and mental distress as a result of the defendant's action for sending a letter of condolences to his wife about his death while he when in fact he is still alive and breathing. The facts indicate that the claim was denied by the Senior Assistant Registrar on the grounds that it did not disclose any cause of action. The plaintiff however appealed and argued that he did indeed experience 'shock', 'fear' and 'anguish' upon being informed by the wife of the letter of condolences, and that the defendant's conduct could be charged under a tort wrong. 6

7. ” 2. ISSUE: Whether the defendant's actions constitute to an 'actionable tort'? 7 ‘actionable tort’: A wrongful act or omission capable as serving as the basis for a lawsuit.

8. 3. RULE OF LAW

9. RULE OF LAW Page v. Smith [1996] 1AC 155, the House of Lords ruled as follows (in original) on page 167: ▹ ‘it is necessary to understand what is meant by “nervous shock” that may result in liability for damages. The decided cases indicate that it means a reaction to an immediate and horrifying impact, resulting in some recognizable psychiatric illness. There must be some serious mental disturbance outside the range of normal human experience, not merely the ordinary emotions of anxiety, grief or fear.’ ▹ ‘A defendant who is under a duty of care to the plaintiff, whatever as primary or secondary victim, is not liable for damages for nervous shock unless the shock results in some recognized psychiatric illness’ 9

10. RULE OF LAW Alcork & Others v. Chief Constable of South Yorkshire Police [1992] 1 AC 310 ruled as follows: ▹ Even though nervous shock and the subsequent psychiatric illness could be reasonably foreseen, it has been generally accepted the damages for merely being informed of, or reading, or hearing about the accident are not recoverable … Certainly Brennan J in his judgment in Jaensch v. Coffey, 155 CLR 549, 57 recognised: ▹ A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential ▹ ... Mere mental suffering, although reasonably foreseeable, if unaccompanied by physical injury, is not a basis for a claim for damages. 10

11. 4. APPLICATION

12. APPLICATION ▹ It is clear from the plaintiff's claim that he did not disclose the cause of action. The shock, fear and depression that the plaintiff experienced was not the sole cause of action against the defendant. Even the angry, shocking non-nervous shock leading to 'psychiatric illness' does not make the defendant liable to the plaintiff. It is clear that plaintiff did not elaborate on 'nervous shock' and 'psychiatric illness.' All that is plead was 'shock', 'fear' and 'mental anguish.' 12

13. 5. HELD

14. IT WAS HELD THAT… ▹ WAN ADNAN MUHAMAD J: Appealed was dismissed on the grounds that what have happened to the plaintiff was not an 'actionable tort'. Plaintiff has no reasonable motive for what he says, that he is in shock, fear and mental anguish is actually a feeling of dissatisfaction or anger with the letter of condolences because he is alive. Also, as a doctor, plaintiff has ought to have extensive experience in dealing with situations that are worse than this. There may be anger and dissatisfaction on the part of the plaintiff but it is not an 'actionable tort' that can be compensated with damages. In addition, the plaintiff did not say he had 'nervous shock' which caused 'psychiatric illness'. All he said was that he had 'shock' and 'mental anguish'. Therefore, the defendant cannot be held liable. 14

15. 15 THANKS! Any questions?

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