King v Philcox

[2014] HCATrans 253

[2014] HCATrans 253

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A12 of 2014

B e t w e e n -

GEORGE KING

Applicant

and

RYAN PHILCOX

Respondent

Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 14 NOVEMBER 2014, AT 10.52 AM

Copyright in the High Court of Australia

MR M.C. LIVESEY, QC:   If the Court pleases, I appear with MR B.J. DOYLE for the applicant.  (instructed by Finlaysons Lawyers)

MR P.A. HEYWOOD-SMITH, QC:   If the Court pleases, I appear with MR G. STATHOPOULOS for the respondent.  (instructed by SE Lawyers)

FRENCH CJ:   Yes, Mr Livesey.

MR LIVESEY:   If the Court pleases, there are two points raised on this application.  The first point concerns the existence and determination of a duty at common law to avoid causing mental harm caused by receiving news about the death of a family member in a motor accident.  This case does not contain any of the special features which we have seen in cases such as Annetts, where there was an assumption of responsibility, or in Gifford, where there was a prior employment relationship.  This case represents an opportunity for the Court to provide guidance on the interplay between the common law and the Ipp reform in South Australia, section 33.

FRENCH CJ:   What do you say to the point that ultimately this is about the interaction of a particular statute, a South Australian statute with the common law, and that it does not flow over into other areas?

MR LIVESEY:   Section 33 has counterparts around Australia.  They are broadly ‑ ‑ ‑

FRENCH CJ:   But not identically worded, are they?

MR LIVESEY:   Very largely identically worded.  There is a variation in Queensland which is not the same, and there is a subtle variation in the Northern Territory where two of the four circumstances are not repeated, but in large measure, a section 33 provision – that is to say, the duty provision – is replicated around Australia.  Unlike Wicks’ Case, Wicks’ Case being a case decided on the statutory limitation, this is a case which provides an opportunity to determine the duty question and the interplay between the common law and the Ipp reform.

The second point is a South Australian point.  It concerns the proper meaning of section 53 which restricts liability for mental harm.  Despite the clear recognition of the South Australian Parliament of an acceptance of Jaensch v Coffey, which itself was a South Australian case, and the imposition of two hurdles - one hurdle being involvement in the accident and associated with involvement in the accident is a bystander provision, that is to say, presence at the scene where the accident occurs; the second hurdle in South Australia is the involvement of a parent, spouse or child - it was in that latter sense that the South Australian Parliament recognised the result in Jaensch v Coffey because it accommodated Mrs Coffey’s claim that she saw distressing things during the aftermath.

That has been the position in South Australia for nearly 30 years, until this Full Court has decided for the first time that “accident” and “aftermath” can be conflated as being the same thing.  That is quite a startling development which finds no support in any other decision and which is inconsistent with the decision of the New South Wales Court of Appeal in Hoinville-Wiggins.  It is encapsulated in Justice Gray’s statement at application book page 33, paragraph 22:

The facts constituting a road accident and its aftermath are not confined to “the immediate point of impact”.  It includes the aftermath of an accident –

With respect to his Honour, question begging.  So far as Justice Sulan is concerned, at application book page 59, his Honour, unlike Justice Gray, had regard to the legislative history but overlooked the significance of that history.  In paragraph 58, his Honour referred to the 1986 provision, and then in paragraph 59, his Honour referred to the Ipp recommendation, No 34.

The telling feature of the Ipp recommendation was that it suggested use of the word “aftermath”.  The South Australian Parliament, having already taken the step in 1986 of leaving that out, declined, unlike other States and Territories, to adopt the Ipp recommendation 34 and left out the word “aftermath”.  His Honour Justice Sulan’s statement at paragraph 60:

In my view, it does not follow that by omitting the above italicised references to aftermath, Parliament has expressed an intention to abrogate the so‑called “aftermath doctrine” –

made, with respect, an obvious error.  There has long been regarded a difference between presence at the scene of the accident when it happens, and exemplars of that are the old fishwife cases considered by Justice Deane in Jaensch v Coffey and later cases where examples such as Mrs Coffey coming to the scene after the accident has happened or going to the hospital after the injured person has been taken there.  All of that has been set at nought by the Full Court’s decision. 

That has, in my respectful submission, wide ramifications for motor accident insurance in South Australia and for tort law more generally, because in the last 10 years since the Ipp reform these - what started out as motor accident provisions - have now been applied across all accident cases in South Australia.  So this provision applies to all plaintiffs in South Australia unless they happen to be parents, spouses or children as defined.

Might I come back to the first question regarding duty?  In Jaensch v Coffey, Chief Justice Gibbs and Justice Deane regarded the existence of a duty of care for distressing news as an open question.  In Annetts and Gifford, this Court, although there were some broad statements made by some of the Judges, this Court accepted that the special features of those cases, which I have already referred to – and assumption of responsibility by the parents in Annetts and the prior employment relationship in Gifford – this Court has never accepted a broadly stated duty of care arising out of bad news. 

That is to be contrasted with some intermediate appellate court decisions which we have included in paragraphs 26 to 31 of our outline of argument.  So at the intermediate appellate level there are some statements supportive, but the High Court has never pronounced on the question.

In our submission, it is not reasonably foreseeable that a sibling who observes the aftermath but sees nothing at all that is distressing to him and does not know that his brother is involved, let alone killed, will suffer mental harm on being told about the death many hours later that evening.  That is a classical case of mental harm caused by distressing news, and, as it was recognised by all of the Judges in Tame and certainly by the Judges in Gifford, the best example of which perhaps is Chief Justice Gleeson’s statement at case book page 8, a finding regarding reasonable foreseeability is not the end of the question.  One must go on and in an Arcadian sense consider whether it is reasonable to impose a duty of care in the circumstances posited.

FRENCH CJ:   Is this a dispute about a factual question?

MR LIVESEY:   No.  It is a question of law.

FRENCH CJ:   That is put against you, I think.

MR LIVESEY:   It is but what that misunderstands, of course, is that the facts in this case are not the subject of any relevant dispute.  It is the legal consequences that follow from those facts.

KEANE J:   You would say that in terms of the coherence of the law if you can have a cause of action for negligently inflicted bad news, cases - theories of liability like Wilkinson v Downton, the intentional infliction of nervous shock are just written out of the law.

MR LIVESEY:   They are.  With respect, it is not going too far to say that it causes havoc to other areas.  In South Australia, for example, there is recognition of a claim for solatium where the statute has recognised that the distress and anguish associated with death is to be met by a separate award of damages.  How that is to be melded in with a case such as this is not clear either.  In my respectful submission, the particular advantage of this case, coming at as it does after Wicks, is that it provides the Court with an opportunity to grapple with something of real practical significance for practitioners and that is how does one take the common law and apply section 33, the duty provision, and meld those two together to make what ultimately is but one decision, does a duty of care arise or not.

FRENCH CJ:   Well, the section sets up necessary conditions for a duty of care.

MR LIVESEY:   With respect, it sets up one condition and four circumstances to consider.  What has occurred in this case is that both the trial judge and the Full Court have mistakenly treated the cases answered by section 33, that being the very issue decided in earlier decisions was not the approach.  Reasonable foreseeability is not and never has been the sole determinant of duty.  The other thing that has been done is that the judges, with respect to them, have not grappled with the significance that three of the four circumstances are not triggered.  Only one is triggered in this case and the significance of this being a case not of sudden shock but of the conveyance of information has been utterly lost sight of.

With respect to him, Justice Gray went so far as to suggest that, in his reasons at paragraph 22, Wicks had direct application to section 33.  Wicks of course, was not a section 33 case but a section 53 case.  He went on to say that plainly a duty was owed, but his Honour, despite having all of the authorities put to him regarding the conveyance of information and whether or not the duty might be owed in those circumstances, all of those cases were put to him, did not consider them and regarded it as being simply a question of whether section 33 was or was not satisfied.  That is an erroneous approach and the real risk is that were it to be followed by other intermediate appellate courts, the intention underlying the Ipp reform would be set at nought. 

In my respectful submission, there are a range of considerations in this unitary approach to the determination of liability which call for assistance from this Court and it is not simply a question of ticking the box.  Even if one ticks three or four of the boxes under section 33 and answers those circumstances positively in favour of a plaintiff, that still leaves for determination the interplay with the common law and as Chief Justice Gleeson has put it, or as Lord Atkin put it, is it reasonable to have in contemplation the particular plaintiff or class of plaintiff concerned.
None of that has been considered by the Full Court in this case and that is a situation which, in my respectful submission, cries out for assistance. 

So far as the section 53 restriction is concerned, this is another root to the same outcome.  It is clear that there are the two limbs:  that is, actual involvement or bystander liability, or alternatively, parents, spouses or children.  So when the South Australian Parliament said that it was, through the second reading speech in 1986, accepting the result in Mrs Coffey’s Case, it was directing its attention to the second limb, that is to say that a spouse could qualify, even though the spouse was not at the accident or involved in the accident but merely came on and saw the aftermath, as Mrs Coffey did.

The South Australian Parliament let matters lie as they were until 2003 and whilst it picked up aspects of the Ipp reform and applied those generally, on this particular provision it made a conscious decision not to pick up the Ipp wording and left out of account the “aftermath” wording.  The significance of that has been lost sight of by the Full Court and, in particular, by Justice Sulan in his recitation of the statutory history.

FRENCH CJ:   I think we understand that point, Mr Livesey.

MR LIVESEY:   I will move on.  The other feature about this aspect of the case is that Justice Gray, in his consideration of section 53 – the restriction provision – at length reviews the Wicks’ decision and concludes, after his extensive review of that case, at paragraph 28, application book 36:

The remarks of the High Court –

in Wicks -

have obvious relevance to the construction of section 53 –

With great respect to his Honour, that is simply wrong.  Wicks was a case where the relevant statutory restriction applied in respect of presence whilst people were, amongst other things, in peril.  His Honour has completely lost sight of that and applied Wicks as if the legislation was the same and the Court will see that in arriving at it in that way, his Honour has misdirected himself on an important matter of law. 

Finally, insofar as his Honour had regard to the definition of the word “accident” defined to mean an incident, his Honour seemed to think, with respect to him, that that in some way gave an extended meaning to the word “accident” and thereby picked up “aftermath”.  There are two things

to be said about that.  First, the use of the word “incident” supports rather than undercuts the applicant’s case.  Second, even if there were some scope for ambiguity, that ambiguity is removed by the long legislative history of nearly 30 years.  In that respect, too, there was error. 

It is that final aspect of the case that Justice Parker joined in with at application book 48 and that conclusion is attacked by the applicant.  So, in my respectful submission, this is an appropriate case for special leave.  The first point, the duty point, arises nationally and is an important matter for this Court to consider.  The second point – admittedly a South Australian point – has important and widespread ramifications for litigation, tort law litigation, in the State of South Australia.  If the Court pleases.

FRENCH CJ:   Thank you.  Yes, Mr Heywood‑Smith.

MR HEYWOOD‑SMITH:   In essence, if the Court pleases, the…..the applicant brings to this Court an application in respect of South Australian legislation in respect of which, ultimately, this State is…..responsible.  The special leave questions are said to arise and seek to divorce duty from the issue – seek to divorce the issue of duty from the statutory regime, in our submission.  In our submission, this is an unsatisfactory vehicle so far as the first and second leave questions are concerned because the issue of duty was not predominantly before the trial judge because it had not been placed in issue.

If the Court goes to page 2 of the application book – this is read with - by reason of the fact that her Honour…..in paragraphs 6 and 7 draws attention to the matters in issue, neither of which relates to duty.  Then, in paragraphs 46 to 55 on pages 9 and 10 of the book, her Honour sets out the defendant’s submissions which the Court will note did not address the issue of duty, and her Honour addresses duty, as she is bound to do and was in any event bound to address it – her Honour addresses it at paragraphs 90 and 92 on page 14 of the application book, and it is addressed quite…..  Now, had the issue of duty been a matter of focus at the time of trial ‑ ‑ ‑

KEANE J:   If the matter was not in issue, why was her Honour making findings about it?

MR HEYWOOD-SMITH:   Well, I have to accept that criticism….what her Honour did.  But the Court will see that it was certainly not a matter of focus and it did not become a matter of focus until the notice of alternative contentions before the Full Court.

FRENCH CJ:   It was dealt with in the Court of Appeal.

MR HEYWOOD-SMITH:   Yes.

FRENCH CJ:   In the Full Court, I mean, at paragraphs 19 and 20 in Justice Gray’s judgment, for example, at page 32.

MR HEYWOOD-SMITH:   Yes, it was, but her Honour, contrary to my learned friend’s suggestion that her Honour only found one of the four limbs of 33(2)(a)…..her Honour in fact found two at application book page 12 in paragraph 72.  Her Honour finds that limb (a)(i) is accepted and, in our submission, at page 14 of the application book in paragraph 88 her Honour finds a second feature established.

FRENCH CJ:   I am sorry, you are not saying that duty of care was conceded?

MR HEYWOOD-SMITH:   Well, I do not advance that, but it was not at the trial level an issue of apparent focus.

FRENCH CJ:   But it was a necessary element of any finding as to liability.

MR HEYWOOD-SMITH:   It was, and her Honour dealt with it quite perfunctorily, we say, and had it been a matter of substantial substance, of course the respondent here – the plaintiff – might well have addressed issues such as any special relationship other than the normal relationship of siblings between he and the deceased, and the Court might note, for example, what Justice McHugh had to say in that respect in Gifford’s Case which is in our friend’s book at paragraphs 49 and 50 on page 21 of those materials…..at paragraph 50.

In our submission, it is not a good vehicle in that sense.  Can we also suggest that it is unhelpful to focus on decisions such as Tame and Annetts, where there was no statutory regime involved where…..the particular circumstances of those cases that this Court will be very familiar with.

The third special leave question related to section 53.  In our submission, it is clearly one of discrete application in South Australian legislation.  Section 53 requires only attendance at an accident.  In the South Australian legislation “accident” is defined as an incident and each of the three justices of the Court of Appeal – Justice Gray at application book 36, paragraph….., Justice Sulan at application book 47, paragraph 65, and Justice Parker at application book 48, paragraph 70 – relied upon the definition of “accident” as an incident to give force to the suggestion that it extended beyond the point of impact.

That is a peculiar feature of South Australian legislation.  In New South Wales, for example, there was no definition of “accident”, and of course, in New South Wales, the legislation spoke of the person witnessing the accident.  That word does not appear in the South Australian legislation.  The applicant, despite a clear invitation consequent upon the respondent’s summary of argument, paragraph 37 on page 72 of the application book, has not sought to challenge the suggestion that South Australian legislation is not indicative or reflective of legislation in other States. 

Indeed, what the applicant asserts in its reply on page 75 of the application book, paragraph 5 draws attention to the fact that these words have substantially stayed in place since 1987; that is 25 years.  Apparently, the section has worked satisfactorily; the State Parliament has not seen fit to amend.  We would advance that there is no particular need for this Court to address the interpretation section.

KEANE J:   It is rather odd, though, is it not, as a matter of statutory construction, to read a phrase “present at the scene of an accident when the accident occurred” as covering the case of a person who does not know he is present at the scene of the accident when the accident occurred.

MR HEYWOOD-SMITH:   That is not the facts of this case, of course.  The plaintiff was very well aware that he was at the scene of an accident.  He just was not aware that the person who was in the vehicle ‑ ‑ ‑

KEANE J:   Was his sibling.

MR HEYWOOD-SMITH:   ‑ ‑ ‑ was his sibling.  But his evidence was that when he became aware later that night that it was, he obviously had these feelings of guilt that he might have been able to do something.  But of course, the section does not require that the person have an appreciation - for example, the section does not exclude a blind person from the benefit of the section, who obviously could not see.  The only obligation is to be present.  It is a qualification which adds something to the common law.  It could, we say, be construed narrowly ‑ ‑ ‑

KEANE J:   Well, it is actually – if one is looking at it with a sense of purpose, it is not so much an obligation as a factual element reflecting the legislature’s view there needs to be some sort of immediacy of exposure to the traumatic event so that it is something more than just hearing about bad news later, getting bad news later.  The legislature is drawing what some might say is an arbitrary line here.  But it is drawing a line because there is obviously a view – well, there is evidently a view in the legislature that a line needs to be drawn somewhere.  Is this not just simply a case of working out what the legislature means by the words by which it has drawn the line?

MR HEYWOOD‑SMITH:   We concur with that submission and that is what the Full Court has done.  The Full Court has looked at the words – attendance, yes, attendance – this plaintiff attended some three or four times during the course of the attempted recovery of the deceased whilst the ambulance was there.  So the line was crossed so far as the plaintiff was concerned.  The section does not require a particular appreciation.  It requires attendance which was satisfied.  In our submission, those provisions in the South Australian Act have been construed by the Full Court in this State.  It is a matter for Parliament if Parliament considers that the result is unsatisfactory.  There is no need, in our submission, for this matter to be taken to a court.

I might just say in closing that so far as section 33 is concerned, it was implicit in paragraph 2 of the respondent’s summary of argument that the respondent was…..a state legislation.  There was not, until we heard this morning, a suggestion that section 33 was indicative of similar sections in other States and those sections have not been brought before the Court or…..that we should respond to them. 

Our submission is that the applicant has had the opportunity to do that, did not do it.  In our submission, it is clearly the case, so far as section…..is concerned.  As to variations in the duties of sections between the States, that is a matter that has not been properly addressed and we invite the Court to address it on the basis that the South Australian legislation is peculiarly South Australian legislation.  Those are our submissions in response.

FRENCH CJ:   Thank you, Mr Heywood‑Smith.  Mr Livesey, firstly, you have indicated a preparedness to make an appropriate undertaking.

MR LIVESEY:   That is so.

FRENCH CJ:   It would seem to me that ordinarily the undertaking in a case like this where I take it it is an insurer who is, in effect, seeking a determination of wider importance would be not disturbed - not seek any disturbance of the costs order below and to pay the costs of the appeal, whatever the outcome.

MR LIVESEY:   Yes, that is so.

FRENCH CJ:   All right.  Now, can I also ask you about ground 4 in your draft notice of appeal at page 54?

MR LIVESEY:   Yes.

FRENCH CJ:   That does not seem to me to be in play here, is it?

MR LIVESEY:   No.

FRENCH CJ:   All right.  So there will be a grant of special leave on grounds 2 and 3 of the draft notice of appeal as it appears at page 54 of the application book and on the undertaking of the applicant not to seek to disturb the costs order below and to pay the costs of the appeal in this special leave application in any event.  The time estimate would be half a day to a day?

MR LIVESEY:   That is so, your Honour.

FRENCH CJ:   Do you agree with that, Mr Heywood‑Smith?

MR HEYWOOD‑SMITH:   Yes, if the Court pleases.

FRENCH CJ:   Yes, all right.  Thank you. 

AT 11.21 AM THE MATTER WAS CONCLUDED