King v Philcox [2015] HCA 19: Damages for Mental Harm in SA
Wednesday 10 June 2015 @ 11.45 a.m. | Torts, Damages & Civil Liability
The High Court has handed down its decision in the case of King v Philcox [2015] HCA 19 and unanimously allowed an appeal from the Full Court of the Supreme Court of South Australia. The High Court held that even though the Full Court was not wrong in finding that the appellant owed the respondent a duty of care under s 33 of the Civil Liability Act 1936 (SA) (the Act), the respondent still could not recover damages because of the operation of s 53 of the Act.
Background Facts
On 12 April 2005, the appellant was driving a motor vehicle and as a result of his negligence, the vehicle collided with another vehicle causing the death of the respondent’s brother who was a passenger in the appellant’s car. The respondent’s brother died while trapped in the vehicle. After the collision, the respondent had driven around the scene of the accident on several occasions. He later found out that his brother had been killed in a traffic accident and realised that this was the accident he had seen the aftermath of. He subsequently developed a major depressive disorder.
The Applicable Law
Section 33(1) of the Act provides that:
“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.”
Section 33(2) lists circumstances to be considered in applying s 33(1), which, in the case of pure mental harm, include the nature of the relationship between the plaintiff and any person killed, injured or put in peril. However, section 53 operates to limit this operation by providing that damages may only be awarded for mental harm if the injured person is “is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the 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 damages.
High Court Decision
The High Court found that a duty of care was owed to the respondent. However, damages could not be awarded because of operation of s 53 of the Act. The respondent was not a parent, spouse, domestic partner or child of the deceased nor was at the scene of the accident when it occurred given that he only witnessed the aftermath. As the respondent could not satisfy the technical requirements of the Act, he could not recover damages.
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