In Homsi v Homsi  VSC 354, the Supreme
Court of Victoria was asked to consider a novel question: whether a
driver who died in a motor vehicle accident (he caused) owed a duty
to his mother to ensure that he did not suffer injury or death as a
result of driving his motor vehicle.
Mr Homsi died as a result of a motor vehicle accident on 25 June
2010, when his vehicle departed his lane into the path of an
oncoming vehicle. His mother developed a psychiatric condition on
learning of her son's death. Mrs Homsi brought an action
against the CTP insurer, alleging that her son owed her a duty of
care not to suffer injury or death as a result of negligently
driving his motor vehicle.
Duty of care
The Court noted that it is uncontroversial that a driver of a
motor vehicle owes a duty of care to use reasonable and proper
skill so as to not injure others.
In terms of pure psychiatric cases the Court noted:
...I consider that the common law recognises that a
negligent driver of a motor vehicle owes a duty not to cause
psychiatric injury to those in the immediate vicinity of an
accident or its aftermath occasioned by his or her lack of care.
The common law also recognises a discrete duty in relation to
psychiatric injury sustained by close relatives (or those in some
other relevant relationship, such as fellow employees or rescuers)
of a person injured or killed by a tortfeaser's negligence.
Such a duty is dependent upon an established and pre-existing duty
of care being owed by the tortfeasor to the primary
However, as to whether the scope of the duty of care would
extend to include Mrs Homsi, the Court stated:
But the common law goes no further. Even accepting
that the categories are never closed, the common law does not
recognise a general duty on the part of the driver of a motor
vehicle (or, for that matter, any person who does not take
sufficient care for his or her safety) not to cause psychiatric
injury to a close relative as a result of injury to himself or
herself. The relationship between mother and son and foreseeability
that the mother would suffer psychiatric injury as a result of the
harm, injury or death is insufficient to found a duty of care on
the part of the son.
The Court determined that there was no duty of care owed by Mr
Homsi to Mrs Homsi in the circumstances and that, in any event, as
a matter of policy, there ought be no finding in her favour.
In considering the policy implications, the Court noted that to
extend the duty of care in the manner requested by Mrs Homsi would
result in an opening of the floodgates and an influx of claims,
which would have significant financial consequences for CTP
insurers. That influx was noted to potentially cover a broad range
of accident circumstances, beyond that of motor vehicles.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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