King v Philcox

This case originated as a claim for damages by the Respondent against the Appellant in the District Court of South Australia. The Respondent’s brother was a passenger in the Appellant’s vehicle when a serious motor vehicle accident occurred that killed the Respondent’s brother.

The accident occurred at a location which was close to the Respondent’s home. The Respondent subsequently drove past the scene of the accident on about five occasions after finishing work. However, he was unaware that his brother was involved in the accident and was in fact deceased inside the vehicle which he was driving past.

The Respondent did not think that anyone would have been injured in the accident until the fifth occasion that he drove past and noticed significant damage to one of the sides of the vehicle. It was not until later that night at his girlfriend’s house that the Respondent was told that his brother had lost his life in a motor vehicle accident nearby.

The Respondent suffered a major depressive disorder as a result of the events surrounding the accident. He subsequently sued the Appellant for damages for the mental harm which he suffered.

In order to obtain damages for from the Respondent for his major depressive disorder, the Respondent needed to overcome two provisions of the Civil Liability Act 1936 (SA) (“the Act”). The first provision required the Respondent to establish that he suffered his mental harm at the scene of the accident when the accident actually occurred.

Interestingly, this first provision could have been overcome if the Respondent was a parent, spouse, domestic partner or child of a person killed, injured or endangered in an accident. However, as he was the brother of the accident victim, he needed to prove that he was at the scene of the accident when the accident occurred.

Under the second provision, it needed to be shown that a reasonable person in the Appellant’s position would have foreseen that someone in the Respondent’s position would suffer mental harm as a result of driving past the scene of a motor vehicle accident at which he later found out his brother had died.

The High Court found that the Appellant owed the Respondent a duty to take reasonable care when driving his vehicle so he would not cause the Respondent to suffer mental harm. It was also found that the Appellant breached that duty of care which he owed the Respondent by driving his vehicle in a negligent manner.

The Appellant’s appeal was, however, successful and he was no longer liable to pay the Respondent damages for his mental harm. The appeal got up on the basis that the Respondent could not prove that he was present at the scene of the accident when the accident occurred.

The High Court commented that to witness the aftermath of an event is not to witness the event itself and that a close connection in space and time is required.

It was argued that the Respondent was in the same ‘locale’ of the accident but was not at the actual scene. Further, the High Court found that the Respondent only witnessed the aftermath of the accident and was not at the scene when the accident actually occurred. Justice Keane in particular found that the Respondent’s mental harm was too remote as he “was not directly exposed to the sights and sounds of the accident”.

This decision of the High Court is however, confined solely to the particular wording of the language used in the South Australian Civil Liability Act which is similar, but not identical to the wording of the Western Australian Civil Liability Act.

The case is distinguishable because according to the provisions of the South Australian Civil Liability Act, damages may only be awarded for mental harm if the injured person:

1. was present at the scene of the accident;

2. when the accident occurred; or

3. is a parent, spouse or child of a person killed, injured or endangered in the accident.

As the Appellant was not the deceased’s parent, spouse or child, but his brother, and he was not physically present at the scene and in particular, precisely when the accident occurred, the High Court upheld the challenge and found that the Appellant was not entitled to an award of damages pursuant to the specific wording of the South Australian legislation.

However, this decision does not preclude damages being claimed by claimants who may have been involved in the “aftermath” of the accident, in the sense that they subsequently attended upon the scene of the accident or the hospital and the principles upholding compensation for such claimants was also recognised in the NSW decision of Wicks v State Rail Authority and Jaensch v Coffey.
 
The common law “aftermath” doctrine as applied in Wicks v State Rail Authority and Jaensch v Coffey is still good law and applicable in the Western Australian jurisdiction. As the Western Australian Civil Liability Act does not require the claimant to be present at the scene of the accident at the relevant time the accident actually occurred, all that is required is that the claimant ‘witnessed at the scene’, a person being killed, injured or put in peril. So long as the claimant’s psyche was challenged by way of sight or sound at, or as close as possible after the accident occurred, and witnessed the victims at the scene being placed in peril, then such factors may be sufficient to arguably attract liability under the Western Australian legislation.

This CASE LAW UPDATE is intended for general information only and you should not act upon it or omit to act on the basis of anything contained herein without first obtaining legal advice in relation to any particular matter or issue.
© Copyright 2015, SRB LEGAL – All Rights Reserved
Date: 12 June 2015

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