2.Set aside paragraphs 1 and 3.1, and paragraph 2 insofar as that paragraph relates to the setting aside of the judgment appealed against, of the order of the Full Court of the Supreme Court of South Australia made on 4 June 2014 and, in their place, order that the appeal be dismissed.
3.The appellant pay the respondent's costs of the appeal to this Court.
On appeal from the Supreme Court of South Australia
Representation
M C Livesey QC with B J Doyle for the appellant (instructed by Finlaysons Lawyers)
P A Heywood-Smith QC with G Stathopoulos for the respondent (instructed by SE Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
King v Philcox
Negligence – Duty of care – Mental harm – Motor accident – Civil Liability Act 1936 (SA) – Appellant negligently drove motor vehicle resulting in death of passenger – Respondent witnessed aftermath – Respondent later realised brother died in accident – Whether appellant as driver owed duty of care to passenger's brother not to cause mental harm – Whether mental harm to brother of person killed foreseeable under s 33 of Civil Liability Act – Whether sibling relationship relevant to foreseeability.
Negligence – Damages for mental harm – Civil Liability Act 1936 (SA) – Whether respondent present at scene of accident when accident occurred – Whether accident includes aftermath.
Words and phrases – "accident", "duty of care", "incident", "present at the scene of the accident when the accident occurred", "proximity", "reasonably foreseeable".
On 12 April 2005 between 4.50pm and 4.55pm Scott Philcox was a passenger in a motor vehicle driven by George King, the appellant, in Campbelltown, a suburb of Adelaide. As a result of Mr King's negligence the vehicle collided with another at the intersection of Newton/Darley and Gorge Roads. Scott Philcox was fatally injured and died at about 5.30pm while trapped in the vehicle.
The deceased's brother, Ryan Philcox, the respondent to this appeal, heard of the accident, which caused his brother's death, a few hours later. He then realised that he had driven past the location of the accident earlier that day while the vehicle in which his brother was trapped and dying was still there. Subsequently, he developed a major depressive disorder.
Mr King was found by the Full Court of the Supreme Court of South Australia[1], on Ryan Philcox's appeal from the District Court of South Australia[2], to be liable to pay Ryan Philcox damages for mental harm. Mr King appeals against that decision on two grounds. The first ground is that he did not owe Ryan Philcox a duty of care. He relies upon s…
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.
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Details
AGLC
King v Philcox [2015] HCA 19
Case
[2015] HCA 19
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr King against a decision of the Full Court of the Supreme Court of South Australia, which had found him liable to pay damages to Mr Philcox for mental harm. Mr King had negligently driven a motor vehicle, resulting in the death of Mr Philcox's brother. Mr Philcox witnessed the aftermath of the accident and later realised his brother had died. The central dispute concerned whether Mr King owed Mr Philcox a duty of care not to cause mental harm, and whether Mr Philcox met the statutory requirements for recovering damages for mental harm.
The legal issues before the High Court were whether Mr King, as the driver, owed a duty of care to Mr Philcox, the brother of the deceased passenger, not to cause mental harm, and whether the mental harm suffered by Mr Philcox was reasonably foreseeable under section 33 of the *Civil Liability Act 1936* (SA). Additionally, the court had to determine whether Mr Philcox satisfied the condition under section 53(1)(a) of the same Act, which requires a plaintiff, other than a parent, spouse, or child, to have been present at the scene of the accident when the accident occurred to recover damages for mental harm.
The High Court allowed Mr King's appeal. While acknowledging that the Full Court had not erred in finding that a duty of care existed, the High Court held that the Full Court was in error in concluding that Mr Philcox was present at the scene of the accident when the accident occurred, as required by section 53(1)(a) of the *Civil Liability Act 1936* (SA). The court reasoned that the definition of "accident" in this context did not extend to the aftermath of the event. Consequently, Mr Philcox was not entitled to recover damages for mental harm.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside paragraphs 1 and 3.1, and paragraph 2 insofar as that paragraph relates to the setting aside of the judgment appealed against, of the order of the Full Court of the Supreme Court of South Australia made on 4 June 2014 and, in their place, order that the appeal be dismissed.
3. The appellant pay the respondent's costs of the appeal to this Court.
Background
Background to the litigation
Mr King was found by the Full Court of the Supreme Court of South Australia[1], on Ryan Philcox's appeal from the District Court of South Australia[2], to be liable to pay Ryan Philcox damages for mental harm. Mr King appeals against that decision on two grounds. The first ground is that he did not owe Ryan Philcox a duty of care. He relies upon s 33 of the Civil Liability Act 1936 (SA) ("the Civil Liability Act (SA)"). That section confines the cases in which one person (the defendant) owes a duty of care not to cause mental harm to another (the plaintiff) to cases in which 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, have suffered a psychiatric illness. Mr King contends that the circumstances of the case did not satisfy that necessary condition. The second ground relied upon by Mr King is that because Ryan Philcox was not present at the scene of the accident when the accident occurred, he did not satisfy the condition imposed by s 53(1)(a) of the Civil Liability Act (SA) upon recovery of damages for mental harm by someone other than a parent, spouse or child of a person killed, injured or endangered in an accident. While it has not been shown to have erred in finding that a duty of care existed, the Full Court was in error in holding that Ryan Philcox was present at the scene of the accident when the accident occurred within the meaning of s 53(1)(a). That conclusion means that Ryan Philcox was not entitled to recover damages for mental harm and that the appeal must be allowed. [1]Philcox v King (2014) 119 SASR 71.[2]Philcox v King [2013] SADC 60.Procedural background Although duty of care was in issue at trial in the District Court, the focus of the case was upon causation and the application of s 53(1)(a). On 10 May 2013, her Honour Judge Bampton made an order that Ryan Philcox was "not entitled to an award of damages for mental harm". She did so in part on the basis that he was not present at the scene of the accident when the accident occurred within the meaning of s 53(1)(a). The Full Court of the Supreme Court of South Australia held that the primary judge had found, and found correctly, that Mr King owed Ryan Philcox a duty of care. It also held, however, that the primary judge erred in finding that Ryan Philcox was not present at the scene of the accident when it occurred. The Full Court allowed his appeal against the judgment of the District Court and awarded him damages in the sum of $69,212.75. It ordered that Mr King pay Ryan Philcox's costs of the action and of the appeal. On 14 November 2014, this Court gave Mr King special leave to appeal against the decision of the Full Court[3]. Special leave was granted on the undertaking that he would not seek to disturb orders as to costs which had been made in the Supreme Court and that he would pay Ryan Philcox's costs of the appeal, including the costs of the application for special leave, in any event[4]. [3][2014] HCATrans 253 (French CJ and Keane J).[4]A certificate at the end of the second defence stated it was put forward in accordance with the instructions of Allianz Australia Insurance Ltd, the claims manager for the compulsory third party insurer for Mr King. The insurer had the conduct of the defence of the action pursuant to s 125 of the Motor Vehicles Act 1959 (SA).The District Court findings
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, KIEFEL AND GAGELER JJ
KEANE J
NETTLE J
On the basis of the findings in (iii) and (iv) Ryan Philcox was held not to be entitled to damages for mental harm.The Full Court decision In the Full Court Mr King filed a notice of alternative contention challenging the primary judge's finding that he owed Ryan Philcox a duty of care[10]. That contention was briefly dismissed by Gray J, who wrote the leading judgment, with which Sulan J and Parker J, who wrote shorter and separate judgments, agreed[11]:"To my mind, the observations of the High Court in Wicks v State Rail Authority (NSW) have direct application to s 33 as discussed above. It was open to the judge to conclude that a duty was owed. Further, in the circumstances, I consider that plainly a duty was owed. It was reasonably foreseeable that a sibling coming upon the scene of this collision, including its aftermath would, on hearing of his brother's death, suffer mental harm." (footnote omitted)[10](2014) 119 SASR 71 at 77 [18].[11](2014) 119 SASR 71 at 77 [20]. The approach of the Full Court to the construction and application of s 53(1)(a) of the Civil Liability Act (SA) is discussed below. Essentially, the Court found that Ryan Philcox had been present at the scene of the accident when the accident occurred and that he thereby satisfied the condition for recovery of damages for pure mental harm.The legislation — history and construction The Civil Liability Act (SA) began its life as the Wrongs Act 1936 (SA) ("the Wrongs Act 1936"). The Wrongs Act 1936 was renamed and substantially amended pursuant to the Law Reform (Ipp Recommendations) Act 2004 (SA) ("the Law Reform Act 2004"). The Law Reform Act 2004 introduced the current ss 33 and 53[12]. [12]Neither s 33 nor s 53 have been amended save for the introduction of the class of "domestic partner" after "spouse" in s 53(1)(b) by s 46 of the Statutes Amendment (Domestic Partners) Act 2006 (SA). Section 33 relevantly provides:"(1)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.(2) For the purposes of this section—(a)in a case of pure mental harm, the circumstances of the case to which the court is to have regard include the following:(i)whether or not the mental harm was suffered as the result of a sudden shock;(ii)whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril;(iii)the nature of the relationship between the plaintiff and any person killed, injured or put in peril;(iv)whether or not there was a pre-existing relationship between the plaintiff and the defendant;(b)in a case of consequential mental harm, the circumstances of the case include the nature of the bodily injury out of which the mental harm arose."Section 33 appears in Pt 6, entitled "Negligence". The term "negligence" is defined as "failure to exercise reasonable care and skill, and includes a breach of a tortious, contractual or statutory duty of care"[13]. The term "duty of care" is defined as "a duty to take reasonable care or to exercise reasonable skill (or both)"[14].[13]Civil Liability Act (SA), s 3, definition of "negligence", which gave effect to Recommendation 2 of the "Ipp Report": see Commonwealth of Australia, Review of the Law of Negligence: Final Report, (2002) at 36.[14]Civil Liability Act (SA), s 3, definition of "duty of care".
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, KIEFEL AND GAGELER JJ,
KEANE J,
NETTLE J