Australia: Clarity of circumstances when damages for pure mental harm may be recovered

Insurance Update
Last Updated: 28 July 2015
Article by Nicole Wearne

In King v Philcox [2015] HCA 19, the High Court clarified when a claim for damages for mental harm may be recovered.  The decision address the application of the Civil Liability Act (SA) to claims for damages for mental harm. Similar provisions regarding the duty of care for mental harm exist in the NSW Civil Liability Act , the Victorian Wrongs Act, the Civil Liability Act 2002 (WA),  the Civil Liability Act 2002 (Tas), andthe Civil Law Wrongs Act 2002 (ACT).


Mr Philcox's brother died in a motor vehicle accident. Mr Philcox (the respondent) drove past the scene of the accident on several occasions. He was notified a few hours later that his brother had died in the accident, and realised that he had driven past the accident while his brother was still trapped in the vehicle. He developed a major depressive disorder. Mr Philcox brought proceedings against the driver of the vehicle (Mr King), seeking damages for mental harm.

At first instance, the South Australia District Court found that Mr King as driver of the vehicle owed the respondent a duty of care, but that the respondent could not recover damages because he had failed to establish causation and did not satisfy the requirements for recovery of damages under s 53 of the Civil Liability Act 1936 (SA). The Full Court of the Supreme Court of South Australia allowed an appeal from that decision and awarded damages. The Full Court held that the respondent satisfied the necessary requirements of duty, breach and causation, and that he was present at the scene of the accident "when the accident occurred", within the meaning of s 53(1)(a) of the Act.

Decision of High Court

The High Court upheld the Full Court of the Supreme Court of South Australia's decision's that the appellant owed the respondent a duty of care under s 33 of the Act. At [29], French CJ, Kiefel and Gageler JJ stated:

"At common law, as under s33, the existence of a duty of care not to cause another person pure mental harm is dependent upon a number of variables which inform the foreseeability of risk. Section 33 does not prescribe any particular pre-existing relationship.... It does require that the defendant has in contemplation a person of normal fortitude in the plaintiff's position.... This Court has considered the extent of the common law duty of care not to cause mental harm to a person connected with the primary victim in decisions which have necessarily focussed upon the particular relationships between the victim and the plaintiff. To say that a duty of care is owed to a parent, spouse, child, fellow employee or rescuer of a victim is not to say that it cannot be owed to the sibling of a victim. The terms of s 33 are consistent with that approach for they include, as one of the circumstances relevant to the foreseeability that is a necessary condition of the duty of care, "the nature of the relationship between the plaintiff and any person killed, injured or put in peril". A sibling relationship is a circumstance of that character. Whether it is a close or loving relationship or a distant one may go to the question of causation more than the existence of a duty of care, but it is not necessary to explore that issue further for the purposes of this case." (NB: citations omitted)

Notwithstanding the clarification about the nature of the relationship required for a duty to be owed to the plaintiff, the High Court ultimately held that the respondent could not recover damages for mental harm, because of the operation of s 53 of the Act, overturning the Full Court's decision on this issue.

Section 53(1) limits the circumstances in which a plaintiff may recover damages for mental harm caused by an accident. If the plaintiff is not a parent, spouse or child of a person killed, injured or endangered in the accident, he or she must have been physically injured in the accident or "present at the scene of the accident when the accident occurred" to recover damages21. French CJ, Kiefel and Gageler JJ held that the text of s53(1)(a), in light of its legislative ancestry, did not support an extended definition of presence at the scene of the accident. The appellant drove past the scene of the accident, but was not present "when the accident occurred", as required by s 53(1)(a) (at [21]) . The court considered that the plaintiff needed to be directly exposed to the sights and sounds of the accident. The court considered that the plaintiff's exposure to the aftermath of the accident was too remote to satisfy the requirements of s53(1)(a) of the Act (per Keane J). Likewise Nettle J considered that s53(1) when read with the definition of "accident" excludes the aftermath of an accident and therefore confines the class of eligible claimants for pure mental harm suffered as a result of an accidents to claimants present at the scene of the accident at the relevant time or if not present, to parents, spouses and children of persons killed or injured as a result of the accident.

The decision clarifies when a claimant who alleges pure mental harm can recover damages.

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Nicole Wearne
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