In brief - High Court allows appeal against damages for mental harm suffered by family member present at aftermath of accident
On 10 June 2015, the High Court handed down a significant decision in King v Philcox [2015] HCA 19 clarifying the requirements of section 53 of the Civil Liability Act 1936 (South Australia). In particular, the decision focused on the meaning of being "present at the scene of the accident" and whether being "present" entitled the plaintiff to damages for mental harm suffered as a result. The court also considered whether a duty of care was owed by a driver to a family member of a victim who may suffer psychiatric illness as a result of being "present" at the scene of an accident.
Recognised psychiatric illness suffered by plaintiff after passing through scene of brother's accident
On 12 April 2005, Scott Philcox was killed in a car accident as a result of the negligent driving of the defendant, George King. In the hours after the accident, the deceased's brother, Ryan Philcox, drove through the intersection where the accident occurred on five separate occasions. He noticed the accident but each time was unaware that his brother was involved and did not recognise the vehicles present at the scene.
He was later informed of his brother's death and made the connection with the accident he had seen at the intersection. He realised that his brother would have still been in the vehicle when he passed through the area. The plaintiff claimed that as a result of this knowledge, he suffered a recognised psychiatric illness (major depressive disorder).
Civil Liability Act limits circumstances where damages for mental harm are awarded
Section 33(1) of the Civil Liability Act (Act) provides for the existence of a duty of care in relation to mental harm:
A person (the defendant) does not owe a duty to another person (the plaintiff ) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant's position would have foreseen that a person of normal fortitude in the plaintiff's position might, in the circumstances of the case, suffer a psychiatric illness.
However,
section 53(1) limits the circumstances where damages will be awarded as follows:
(1) Damages may only be awarded for mental harm if the injured person—
(a) was physically injured in the accident or was present at the scene of the accident when the accident occurred; or
(b) is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident.
Supreme Court finds that section 53(1)(a) not satisfied
At first instance, the Supreme Court of South Australia held that whilst the defendant owed a duty of care to the plaintiff, there was no entitlement to damages for mental harm because section 53(1)(a) of the Act was not satisfied. Furthermore, even if that was not the case, the plaintiff's mental harm was not caused by his presence at the scene of the accident. It was instead caused by the news of his brother's death.
Court of Appeal finds that plaintiff was "present" at accident scene and awards damages
On appeal, the Full Court of the Supreme Court of South Australia agreed with the decision of the primary judge that the defendant owed a duty of care to the plaintiff. However, it overturned the Supreme Court's conclusion in relation to the application of section 53(1)(a) and found that the plaintiff was "present" at the scene of the accident when it occurred and was therefore entitled to damages for mental harm. The court was also satisfied that there was a sufficient causal link between the psychological trauma and the plaintiff's presence at the scene of the accident.
The Full Court awarded damages to the plaintiff in the sum of $69,212.75.
The defendant then sought special leave to appeal to the High Court on two grounds:
(1) That he did not owe a duty of care to the plaintiff under section 33 of the Act,
(2) That section 53(1) of the Act was not satisfied because the plaintiff was not "present at the scene of the accident when the accident occurred".
High Court finds no unreasonable burden in finding a duty of care owed in these circumstances
In allowing the appeal, the High Court unanimously recognised a duty of care could exist in favour of the plaintiff. As stated by Nettle J:
...it is enough that it is reasonably foreseeable that a close relative may arrive at the aftermath of the accident and suffer mental harm to recognise the existence of a duty to take reasonable care to guard against such close relatives suffering mental harm. (at [85])
His Honour recognised that to find a duty of care in these circumstances did not create any unreasonable burden because it required a motorist to do no more than they were already bound to do to satisfy their duty of care to their passengers.
"Aftermath" not meant to be included in definition of accident
The High Court considered the history behind the enactment of section 53 of the Act and found that it was not the legislative intention that the "aftermath" of an accident be included within the definition of accident for the purposes of that section.
Chief Justice French, and Justices Kiefel and Gageler held in a joint judgment that whilst the plaintiff may have been "present at the scene of the accident", he was not present "when the accident occurred". (at [21])
Keane J, in a separate judgement, also found that section 53(1)(a) was not satisfied. However, he went a step further than the joint judgment, concluding that the plaintiff was neither "present at the scene of the accident" nor present "when the accident occurred". His Honour held that to be present at the scene of an accident, a person must be "...exposed to the sights and sounds of the accident" (at [53]) and the plaintiff did not satisfy this requirement on the facts.
Nettle J found that section 53(1)(a) was not satisfied without distinguishing between the two elements as the other judges had done.
The court also approved of the decision in Hoinville-Wiggins v Connelly [1999] NSWCA 263, where the New South Wales Court of Appeal held in relation to a similar provision in the Motor Accidents Act 1988 (NSW) that an "accident" does not include its aftermath. It was stated in that decision that the words "when the accident occurred" required a close connection in space and time.
Entitlement to damages in similar case may be possible in Victoria and New South Wales
The High Court's conclusion on the existence of duty of care is widely applicable given the similarity of legislation across the states. See, for example, Wrongs Act 1958 (Victoria), section 72 and Civil Liability Act 2002 (NSW), section 32.
The decision on the application of section 53 though is limited to the South Australian context given it is the only jurisdiction which uses the particular form of wording considered by the High Court. In Victoria, section 73 of the Wrongs Act provides that damages for pure mental harm arising from mental or nervous shock in connection with injury suffered by another person are only recoverable if "the plaintiff witnessed, at the scene, the victim being killed, injured or put in danger" or "was in a close relationship with the victim". A similarly worded provision is also contained in the Civil Liability Act (NSW).
Under Victorian legislation, it is possible that a sibling relationship could be considered a "close relationship" sufficient to justify an entitlement to damages. Similarly, in NSW, "close member of the family" is expressly defined to include sibling relationships for the purposes of that section. Therefore, it is possible that if similar events took place in Victoria the victim's brother may be entitled to recover damages based on his relationship with the victim without resorting to whether he witnessed the victim being killed, injured or put in danger. In New South Wales, damages would be recoverable due to the express inclusion of sibling relationships in the definition.
Note that the Civil Liability Act 2003 (Qld) does not contain an equivalent provision limiting damages for mental harm and therefore the position in Queensland is not discussed in this article.
For similar provisions existing in other Australian jurisdictions, see also: Civil Law (Wrongs) Act 2002 (ACT), section 36; Civil Liability Act 2002 (Tas), section 32.
Mental harm damages difficult to claim for persons attending the aftermath of an accident in South Australia
As reflected by Keane J, the requirements of section 53(1)(a) are not arbitrary limits which should be strictly confined. Rather, they are an "informed and rational response...as to where the law should best draw the line to limit indeterminate liability". His Honour states that such measures are "taken in the public interest to preserve the general availability of the remedy by ensuring the viability and affordability of arrangements to meet the costs involved". This is of particular relevance to insurers given the resulting uncertainty if defendants were held liable for mental harm suffered by any person present at the aftermath of an accident.
Interestingly, the decision may also have consequences for "rescuers" or persons who attend at the aftermath of an accident to administer assistance to injured persons. Under South Australian legislation, it will now be very difficult to claim an entitlement to damages for mental harm unless the rescuer was present at the time of the accident or can satisfy one of the categories of relationship specified in section 53(1)(b). However, Keane J takes the view that whether or not "rescuers" should be entitled to claim damages for mental harm is a matter for the legislature.