JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2016 (supplementary written submissions on 27 May 2016)
DATE OF JUDGMENT:	28 June 2016
CASE MAY BE CITED AS:	Homsi v Homsi
MEDIUM NEUTRAL CITATION:	[2016] VSC 354

NEGLIGENCE – Duty of care – Motor vehicle accident caused solely by negligence of defendant, son of the plaintiff - Duty to avoid injury to oneself - Psychiatric injury of mother after learning of son’s death – Loss and damage – Whether duty of care owed by son to mother – Immediate victim and secondary victim – Whether sufficient proximity between accident and psychiatric reaction of plaintiff – Section 93 Transport Accident Act 1986 – Kuhl v Zurich Financial Services Australia Ltd, Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288, King v Philcox and formulation of the duty of care – Dulieu v White & Sons – Mount Isa Mines Ltd v Pusey, Jaensch v Coffey, Annetts v Australian Stations Pty Ltd, Gifford v Strang Patrick Stevedoring Pty Ltd and claims for psychiatric injuries involving immediate and secondary victims.

PROCEDURE – Pleadings – Application to strike out statement of claim – Whether facts alleged in statement of claim sufficient to found duty of care.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell QC with Mr D Purcell	Nowicki Carbone
For the Defendant	Mr J Ruskin QC with Mr D Oldfield	Transport Accident Commission

HIS HONOUR:

Introduction

In June 2010 the defendant, Mahmoud Homsi, died in a transport accident. The vehicle he was driving collided with another vehicle in Melville Road, Pascoe Vale South. The accident was solely due to Mahmoud’s negligence.

The plaintiff, Mahmoud’s mother, Iman Homsi, learnt by telephone of her son’s death soon after it occurred. She has suffered a severe psychiatric reaction and has not worked since Mahmoud’s death.

The question to be resolved is whether, in these circumstances, Mahmoud owed his mother a duty of care. The question is novel and I have decided that the answer is no.

This application

On 31 July 2015, Associate Justice Ierodiaconou referred the following question for determination pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2005:

Whether the late Mahmoud Homsi owed the plaintiff a duty to take reasonable care in the driving of his vehicle to ensure that he did not suffer serious injury or death as a result of the driving of the vehicle.

The background facts

Iman was born on 15 March 1966. She is now 50 years of age. Mahmoud was 26 years of age at the time of his death.

Mahmoud was not living with his mother; however it was not in issue, for the purpose of this application, that there was a close relationship between mother and son.

The accident occurred…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Homsi v Homsi

Details

AGLC: Homsi v Homsi [2016] VSC 354
Case: [2016] VSC 354
Decision Date: 28 June 2016

CaseChat Overview and Summary

The case of Homsi v Homsi involved a legal dispute between the parents of a deceased individual, the plaintiff and the defendant, over the aftermath of a motor vehicle accident caused by the negligence of the defendant's son. The plaintiff, the mother, sought compensation for the psychiatric injury she suffered upon learning of her son’s death. The case was heard in the relevant court, which had to determine whether a duty of care was owed by the son to his mother and if the plaintiff’s psychiatric injury was sufficiently proximate to the accident. The court also needed to consider the legislative provisions under Section 93 of the Transport Accident Act 1986 and the applicable case law precedents such as Kuhl v Zurich Financial Services Australia Ltd, Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288, and King v Philcox, among others, to establish the duty of care in the context of psychiatric injury claims.

The legal issues before the court included whether a duty of care was owed by the son to his mother, the distinction between immediate and secondary victims in claims for psychiatric injuries, and the sufficient proximity between the accident and the mother's psychiatric reaction. The court had to evaluate the allegations in the statement of claim to determine if they were sufficient to found a duty of care and whether the facts alleged could support a claim for damages. This involved an examination of the established case law, such as Dulieu v White & Sons, Mount Isa Mines Ltd v Pusey, Jaensch v Coffey, Annetts v Australian Stations Pty Ltd, and Gifford v Strang Patrick Stevedoring Pty Ltd, which provide frameworks for assessing claims of psychiatric injury.

In its reasoning, the court found that the son did owe a duty of care to his mother to avoid causing her foreseeable psychiatric injury. However, the court also noted that the mother’s psychiatric injury was not considered sufficiently proximate to the accident to establish a duty of care. The court determined that the facts alleged in the statement of claim were insufficient to found a duty of care in this context. Consequently, the application to strike out the statement of claim was successful, and the plaintiff’s claim was dismissed.

Orders