Australia: Accident v aftermath: High Court decision on damages sought for mental harm

Last Updated: 16 June 2015
Article by Nadia Stanev and Peter Jones

KING v PHILCOX [2015] HCA 19

Yesterday, the High Court handed down a significant decision in the context of personal injury claims within South Australia. The decision concerns the interpretation and application of Sections 33 and 53 of the Civil Liability Act 1936, which were introduced as part of a suite of amendments in 2004 with the intention of curtailing the class of persons who could recover damages for negligently inflicted mental harm.

THE BACKGROUND

On 12th April 2005, the respondent's brother was a passenger in a motor vehicle driven by the appellant, which was involved in an accident due to the appellant's negligence. The respondent's brother was trapped in the wreckage and died at the scene. After the collision, the respondent drove through the relevant intersection and witnessed the accident aftermath on five separate occasions. Each time, the respondent was not distressed by anything he had witnessed and furthermore had no awareness that his brother had even been in the accident and had been fatally injured.

It was not until approximately 6 hours later that he was informed by family members that his brother had in fact died in the accident in question. The respondent visited the accident scene the next day and subsequently developed a psychiatric reaction which was diagnosed as a major depressive disorder.

At first instance, the Trial Judge (Judge Bampton) held that the appellant owed the respondent a duty of care pursuant to Section 33, but dismissed the claim on the basis that the respondent failed to satisfy the requirement at Section 53(1)(a), namely that that he ".... was present at the scene of the accident when the accident occurred".

The Full Court of the Supreme Court (Gray, Sulan and Parker JJ) upheld the Trial Judge's ruling on Section 33, but unanimously allowed the respondent's appeal with respect to Section 53(1)(a). In finding that he had been present at the scene of the accident when the accident occurred, the Full Court considered that the definition of "accident" in Section 3 of the Act imported the term "incident" which was said to be synonymous with an event, eventuality or aftermath and was therefore broad enough to include events directly related to, and following on from, the actual impact. On that basis, Section 53(1)(a) did not require a plaintiff to be present at the actual time of impact between the two vehicles, and presence at the aftermath sometime after the accident is sufficient.

Although the High Court (French CJ, Kiefel, Gaegler, Keane and Nettle JJ) held that the Full Court did not err in finding that the appellant owed the respondent a duty of care pursuant to Section 33, it unanimously rejected the Full Court's analysis of Section 53(1)(a) as straining too far against the ordinary English meaning of the phrase "present at the scene when the accident occurred".

CONCLUSION

The High Court's ruling confirms that Section 53(1)(a) is an explicit condition that requires direct exposure to the sights and sounds of an accident itself and which will not be satisfied by merely witnessing the aftermath, notwithstanding the harsh consequences this strict interpretation may have in some circumstances.

APPLICABILITY IN VICTORIA

The decision in the case detailed above was based on Sections 33 and 53 of the South Australian Civil Liability Act 1936. The relevant Victorian legislation regarding a person's duty of care not to cause pure mental harm is contained in Sections 72 and 73 of the Wrongs Act 1958 (Vic). Section 72 is in very similar wording to Section 33 of the Civil Liability Act. Therefore, the High Court's finding that the appellant owed a duty of care to the respondent would apply to any cases decided under the Victorian legislation.

However, it is worth noting that Section 73 contains some potentially significant differences from Section 53;

  • Firstly, Section 73 permits the plaintiff to recover damages for pure mental harm if the plaintiff "witnessed, at the scene, the victim being killed, injured or put in danger", in comparison to Section 53 which states "present at the scene of the accident when the accident occurred". Section 73 is almost identical to Section 30 of the Civil Liability Act 2002 (NSW), which the High Court did have cause to consider in this case. The High Court held that there were significant textual differences between the two provisions and that Section 30 is not broadly comparable to Section 53. This means that Victorian cases may be able to distinguish the High Court's decision in relation to the recovery of damages, given that the legislation is textually different.
  • Secondly, Section 73 provides that the plaintiff can recover damages if the plaintiff "is or was in a close relationship with the victim". Close relationship is not defined in the Victorian legislation and there has not been any case law considering its meaning. Arguably, siblings would be considered to be in a close relationship and so the respondent would have been entitled to damages if this had been decided under the Victorian legislation.

To discuss the details of this recent High Court ruling or any queries you may have relating to claims for damages sought for mental harm, please contact your local Hunt & Hunt lawyer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.