Philcox v King
[2014] SASCFC 38
•11 April 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PHILCOX v KING
[2014] SASCFC 38
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Parker)
11 April 2014
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE
TORTS - NEGLIGENCE - FATAL ACCIDENTS LEGISLATION - BY WHOM AND FOR WHOSE BENEFIT ACTION MAY BE BROUGHT
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES - INTERSECTIONS AND JUNCTIONS
Appeal from the dismissal of a plaintiff’s claim following a trial in the District Court. The plaintiff's brother died as a result of personal injury sustained in a motor vehicle accident caused as a result of the defendant's negligent driving. The plaintiff drove through the scene of the accident five times in total, on one occasion realising the passenger would have been horrifically hurt or killed. The trial Judge found that the defendant owed the plaintiff a duty to take reasonable care not to cause the plaintiff harm pursuant to section 33 of the Civil Liability Act 1936 (SA), but ultimately found that the plaintiff was not entitled to damages for mental harm pursuant to section 53 of the Act.
Whether the defendant owed the plaintiff a duty of care. Whether the duty had been breached. Whether the plaintiff was relevantly present at the scene of the accident when the accident occurred. Whether the plaintiff's mental harm was caused by the defendant's negligence.
Held per Gray J (Sulan and Parker JJ agreeing) (allowing the appeal):
(1) The definitions of "accident" and "motor accident" in section 3(1) of the Civil Liability Act as an "incident" encompasses events directly related to and following on from the actual impact.
(2) A duty of care was owed by the defendant to the plaintiff. 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.
(3) Witnessing an accident does not require attendance at the point of impact, it is sufficient if the injured person is present at some time during the succeeding events during which further injury might be occurring.
(4) The opinions of an expert psychiatrist, Dr Ewer, do not materially assist on the issue of causation. Insofar as any liability at common law was to be addressed, the plaintiff satisfied the requirement of duty, breach and causation.
Civil Liability Act 1936 (SA) s 3, s 33 and s 53; Civil Liability Act 2002 (NSW) s 30 and s 32; Wrongs Act 1936 (SA) s 24C; Motor Accidents Act 1988 (NSW) s 77, referred to.
Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60; Jaensch v Coffey (1984) 155 CLR 549; Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; Thompson v Australian Capital Television PL (1994) 54 FCR 513; Hoinville-Wiggins v Connelley [1999] NSWCA 263, considered.
PHILCOX v KING
[2014] SASCFC 38Full Court: Gray, Sulan and Parker JJ
GRAY J.
This is an appeal from the dismissal of a plaintiff’s claim following a trial in the District Court.
On 12 April 2005, Scott Philcox was a front seat passenger in a motor vehicle driven by the defendant and respondent, George King. The vehicle was involved in a collision with another vehicle at an intersection at Campbelltown. The collision occurred between 4.50 pm and 4.55 pm that day. It was agreed at trial that the collision was caused by the negligence of the defendant. Scott Philcox sustained serious injuries as a result of the force of the impact and, as a consequence, died at about 5.30 pm while still trapped in the vehicle. The plaintiff and appellant, Ryan Philcox, is the brother of the late Scott Philcox. The plaintiff claimed that he was present at the scene of the collision and that, as a result, he suffered mental harm.
The intersection at Campbelltown was traversed frequently by the plaintiff. On the afternoon of 12 April 2005, the plaintiff drove through or turned left at the intersection on five separate occasions after the collision. He was unaware that his brother was a passenger in one of the vehicles, unaware that he was trapped in the vehicle and unaware that he had been fatally injured on any of the five separate occasions. On the second of the occasions, at some time between 5.00 pm and 5.30 pm, the plaintiff was directed by police officers to travel into a slip lane and then through the intersection. At this time, he was aware of the presence of the police officers and emergency vehicles. On this occasion, his girlfriend was with him and she was concerned to ascertain whether she knew anybody involved in the collision. She did not recognise either vehicle.
On the fourth occasion, about five minutes later, on traversing the intersection the plaintiff noticed that one of the motor vehicles had sustained severe damage to the passenger side. He also observed that this vehicle had been cut open, apparently to retrieve someone, and at this time it was quite apparent to the plaintiff that someone had been horrifically hurt or killed.
His evidence in chief on this topic was as follows:
Q. As you approached the intersection what did you observe.
A. It had been pretty much cleared. There was a flat bed tow truck vehicle recovery, so I noticed the vehicle that was on that truck and the very extensive damage to the car. I thought that, we saw that there was still a vehicle at the scene, maybe there had been a second accident because some time at passed. Then I saw the damage to that vehicle and I realised it was much more extensive than the previous time we had been through. Obviously the car had to be opened and someone had to be cut from the car and the damage was quite severe to that vehicle.
Q. Where did you see the flatbed truck.
A. It was still parked at the intersection. I can't recall other vehicles - I assume they were, yeah, ready to take it to wherever it needed to go.
Q. Which part of the intersection was it.
A. I can't be sure, but to the - I was coming down Gorge Road so to the right in front of me.
Q. And the vehicle on top of the truck, what did you see of that vehicle.
A. It was a sort of blue or grey wagon and it had some severe damage to the passenger side. I'd wondered of the injuries to the driver, let alone there had been a passenger and yeah, it was quite apparent that someone had been, if not quite horrifically hurt, that died in that.
This evidence was not challenged in cross-examination.
Later that evening, at or about 10.30 pm to 11.00 pm, the plaintiff’s parents told him that his brother had been killed in a car accident. The plaintiff realised that this was the accident he had passed by on the five occasions. He immediately attempted to work out what had happened and was devastated by the thought that he had been there, he did not know and he did not stop. In evidence in chief, the plaintiff provided the following account:
Q. What was your reaction to the news about Scott being dead.
A. Shock, you just don't expect that, he didn't - you know, he was never out doing much, he wasn't ever putting himself in a dangerous position, he was just Scott. Confusion why he was even there, from where they had been working, to go back home, to the hills, there was no reason to come through that area. You know, I fear that they had been coming to see me or there wasn't anything in the area for either of them to be visiting or doing, maybe they, you know, trying to work out why they were there or how, just questions I suppose.
The plaintiff then went with his parents to tell his sister of Scott’s death, following which his sister’s partner drove him home. In the early hours of the following morning he returned to the intersection and spent some hours viewing the scene. He felt angry and guilty from not knowing and not stopping. On this topic, the plaintiff gave the following evidence in chief:
Q. When did you go to the intersection.
A. It would have been in the early hours of the morning, 2, 3 a.m., sometime early in the morning.
Q. Did anyone go with you to the intersection.
A. No.
Q. When you went to the intersection what did you see.
A. There was markings on the road, there was residual debris, there was - mostly just looking at the lights, working out the sequence of lights, working how it could happen, how someone did what I'd think, trying to think what I'd noticed having driven through. I think looking for someone to blame.
Q. How long did you stay at the intersection for.
A. I don't recall, could have been a few hours maybe, I don't remember.
Q. Did you go home after that.
A. Yeah, I would have gone home, I don't remember much of that.
Q. What did you do at the time that you were at the intersection.
A. Paced around, sat, cried.
Q. What were your feelings at that time.
A. Angry and you know anger at myself for being there and not knowing, knowing when - just Scott was a passenger, he was just there and just I don't know, angry, guilty for not knowing, not stopping, not - you know.
Q. Why were you angry or guilty at not stopping.
A. You feel like you should know, it's your brother, you've grown up with this kid and you're there a matter of metres from them dying in a car and you don't even know, I chose not to stop.
Sections 33 and 53 of the Civil Liability Act 1936 (SA) address claims for mental harm. Section 33 addresses the duty of care with respect to mental harm and lists circumstances to be included when determining whether a duty of care is owed by a defendant. Section 33 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.
(3)This section does not affect the duty of care of a person (the defendant) to another (the plaintiff) if the defendant knows, or ought reasonably to know, that the plaintiff is a person of less than normal fortitude.
Section 53 of the Civil Liability Act addresses damages for mental harm:
(1)Damages may only be awarded for mental harm if the injured person—
(a) was physically injured in the accident or was present at the scene of the accident when the accident occurred; or
(b) is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident.
(2)Damages may only be awarded for pure mental harm if the harm consists of a recognised psychiatric illness.
(3)Damages may only be awarded for economic loss resulting from consequential mental harm if the harm consists of a recognised psychiatric illness.
Mental harm is defined by the Civil Liability Act to mean impairment of a person’s mental condition. Consequential mental harm is defined as mental harm that is a consequence of bodily injury to the person suffering the mental harm. Pure mental harm means mental harm other than consequential mental harm. This is a case of pure mental harm.
The Judge considered that the plaintiff was an honest witness trying his best to describe his life before and after the death of his brother. The Judge accepted the evidence of the plaintiff and in that respect observed:[1]
Before I embark upon discussing [the plaintiff’s] evidence, I make it clear that I accept his evidence. He was an honest witness trying his best to give his evidence about his life before and after the tragic death of his brother and in particular, the five occasions he drove through or turned left at the intersection.
[1] Philcox v King [2013] SADC 60, [9].
The Judge found that the plaintiff had suffered a recognised psychiatric illness as the result of the sudden shock:[2]
It is of note that Ms Johnson refers in her reports to [the plaintiff’s] ‘psychological illness’. By contrast, Dr Ewar refers to [the plaintiff] suffering a ‘psychiatric illness’ namely a Major Depressive Disorder. I am satisfied that [the plaintiff] suffers mental harm which is a recognised psychiatric illness as diagnosed by the psychiatrist Dr Ewar.
[2] Philcox v King [2013] SADC 60, [69].
The Judge first addressed the question of whether the defendant owed the plaintiff a duty of care pursuant to section 33 of the Civil Liability Act. The Judge identified each of the circumstances set out in section 33(2)(a)(i)-(iv) and concluded that the plaintiff suffered mental harm as the result of sudden shock caused by hearing the news of his brother’s death, that the plaintiff did not witness at the scene of the accident his brother being killed, injured or put in peril, that the plaintiff and Scott were brothers, and that it was reasonably foreseeable that a person of normal fortitude in the plaintiff’s position might suffer a psychiatric illness as a result of the sudden shock upon seeing or hearing of his brother’s death. The Judge found that the defendant owed a duty to take reasonable care not to cause the plaintiff harm. As a consequence, the Judge concluded that section 53 of the Civil Liability Act was enlivened and that it was necessary to determine whether or not the plaintiff was entitled to damages.
The Judge, when addressing section 53, noted that the plaintiff was not a close family member of the deceased within the meaning of the statutory provisions. In the Judge’s view, the plaintiff was not present at the scene of the accident when the accident occurred as required by section 53(1)(a). As a consequence, the plaintiff’s claim failed.
The Judge went on to consider the position if she was wrong in concluding that the plaintiff was not present at the scene of the accident when the accident occurred, in other words, that the plaintiff had satisfied the requirement set out in section 53(1)(a). As the Judge noted, it was necessary to consider whether section 53(2) applied. In that respect, the Judge concluded:[3]
I find that there is no causal link between what [the plaintiff] saw on any occasion he passed the intersection and the injuries that he developed. The injuries that he developed were caused when he received the news of his brother’s death. Accordingly s 53(2) is not satisfied.
[3] Philcox v King [2013] SADC 60, [101].
The Judge then summarised her findings as follows:[4]
[4] Philcox v King [2013] SADC 60, [104]-[104].
In summary I find:
The Defendant owed [the plaintiff] a duty of care.
[The plaintiff] suffered mental harm, which consists of a recognised psychiatric illness, as a result of sudden shock upon receiving the news of his brother’s death.
[The plaintiff] did not witness, at the scene of the accident his brother being killed, injured or put in peril.
[The plaintiff] was not present at the scene of the accident when the accident occurred.
If I am wrong and [the plaintiff] was present at the scene of the accident at the time the accident occurred, that did not cause him mental harm.
[The plaintiff] is therefore not entitled to damages for mental harm, pursuant to s 53 of the Act.
The Appeal
The plaintiff advanced two main contentions on the appeal. First, it was submitted that the Judge erred in finding that the plaintiff was not present at the scene of the accident when the accident occurred in accordance with section 53(1)(a) of the Civil Liability Act. Second, the plaintiff submitted that the Judge erred in finding that causation was not established between the plaintiff’s presence at the scene of the accident and his mental harm.
By way of a notice of alternative contention, the defendant submitted on the appeal that the plaintiff’s claim should be dismissed because no duty of care was owed to a person who suffered mental illness as a result of being told of the death of a family member.
Duty of Care
It is convenient to first address the question raised in the defendant’s notice of alternative contention, namely, whether the defendant owed the plaintiff a duty of care. As earlier noted, the Judge concluded that the defendant did owe a relevant duty of care to the plaintiff.
To my mind, the observations of the High Court in Wicks v State Rail Authority of New South Wales[5] have direct application to section 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.
[5] Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60.
Section 53 of the Civil Liability Act
On the appeal, the plaintiff contended that having found that the defendant owed the plaintiff a duty of care within the terms of section 33 of the Civil Liability Act, the Judge should have proceeded to find that the duty had been breached and that mental harm had been sustained by the plaintiff as he was relevantly present at the scene of the accident when the accident occurred. It was common ground that the mental harm suffered by the plaintiff consisted of a recognised psychiatric illness. It was contended that the Judge had misconstrued section 53 of the Civil Liability Act and had failed to properly address the issue of causation.
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 which encompasses events at the scene after its occurrence, including the extraction and removal of persons from damaged vehicles.
In her reasons, the Judge correctly adopted the reasoning of the High Court in Wicks v State Rail Authority of New South Wales[6] to the effect that witnessing an accident does not require attendance at the point of impact, it is sufficient if the injured person is present at some time during the succeeding events during which further injury might be occurring. The Judge made it clear that but for the failure to “witness” his brother being killed, injured or put in peril at the scene of the accident the appellant would have satisfied any requirement of presence “when the accident occurred”.
[6] Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60, [77]-[80].
In Wicks v State Rail Authority of New South Wales,[7] the High Court considered section 32 of the Civil Liability Act 2002 (NSW), a section in relevantly comparable terms to section 33 of the South Australian Civil Liability Act. The following observations of the Court are pertinent:[8]
Because s 32 defines or controls what otherwise would be a duty of care arising at common law, it falls for consideration before the limitation upon entitlement to damages imposed by s 30(2). Consideration of the operation of s 32 (in particular sub-ss (1) and (2)) must begin from the observation that neither s 32 itself, nor any other provision of the Civil Liability Act (whether in Pt 3 or elsewhere), identifies positively when a duty of care to another person to take care not to cause mental harm to that other should be found to exist. Rather, like s 30(2), s 32(1) is cast negatively. It provides that a duty is not to be found unless a condition is satisfied. The necessary condition for establishment of a duty of care, identified by s 32(1), is that the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
The determination of whether the defendant ought to have foreseen mental injury to a person of normal fortitude must be made with regard to "the circumstances of the case". Section 32(2) identifies four kinds of circumstance to which regard should be had: whether the mental harm was caused by sudden shock, whether there was "witness[ing], at the scene," of certain types of event, what was the relationship between plaintiff and victim, and whether there was a relationship between plaintiff and defendant. But s 32 does not prescribe any particular consequence as following from the presence or absence of any or all of those circumstances.
Section 32, taking the form it does, must be understood against the background provided by the common law of negligence in relation to psychiatric injury as stated by this Court in Tame v New South Wales. Judgment in Tame was delivered on 5 September 2002; the provisions of Pt 3 of the Civil Liability Act were inserted in December 2002 by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW).
Tame held that in deciding whether, for the purposes of the tort of negligence, a defendant owed a plaintiff a duty to take reasonable care to avoid recognisable psychiatric injury, the central question is whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable. A majority of the Court in Tame rejected the propositions that concepts of "reasonable or ordinary fortitude", "shocking event" or "directness of connection" were additional pre-conditions to liability.
In part, s 32 of the Civil Liability Act reflects the state of the common law identified in Tame. Consistent with what was decided in Tame, s 32 assumes that foreseeability is the central determinant of duty of care. Consistent with Tame, "shocking event", and the existence and nature of any connection between plaintiff and victim and between plaintiff and defendant, are considerations relevant to foreseeability, but none is to be treated as a condition necessary to finding a duty of care. But contrary to what was decided in Tame, s 32 provides that a duty of care is not to be found unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness.
[Footnotes omitted.]
[7] Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60.
[8] Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60, [22]-[26].
The Court in Wicks v State Rail Authority of New South Wales[9] went on to consider section 30 of the New South Wales Civil Liability Act. Section 30 is broadly comparable to section 53 of the South Australian Civil Liability Act, as extracted earlier. Section 30 relevantly provides:
(1)This section applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in peril by the act or omission of the defendant.
(2)The plaintiff is not entitled to recover damages for pure mental harm unless:
(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or
(b) the plaintiff is a close member of the family of the victim.
…
[9] Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60.
Both section 33 and section 53 of the South Australian Civil Liability Act focus on mental harm and psychiatric illness. It is to be noted, however, that one of the matters to be considered in assessing whether a duty of care is owed is whether or not the mental harm was suffered as a result of a sudden shock. On this topic the members of the High Court in Wicks v State Rail Authority of New South Wales relevantly observed:[10]
Because neither "sudden shock", nor witnessing a person being killed, injured or put in peril, is a necessary condition for finding a duty to take reasonable care not to cause mental harm to another, s 30 will be engaged in only some cases where a relevant duty of care is found to exist. As s 30(1) makes plain, s 30 will be engaged only where the claim is for "pure mental harm", where the claim is alleged to arise "wholly or partly from mental or nervous shock", and where the claim is alleged to arise from shock in connection with "another person ... being killed, injured or put in peril by the act or omission of the defendant".
…
There can be little doubt that those who came upon the scene of the derailment were confronted with a scene that would cause a "sudden and disturbing impression on the mind or feelings". But it would be wrong to attempt to confine the "shock" that each rescuer suffered to what he perceived on first arriving at the scene. The sudden and disturbing impressions on the minds or feelings of the rescuers necessarily continued as each took in more of the scene, and set about his tasks. Contrary to what appeared to be an unexpressed premise for much of the submissions on behalf of State Rail, the event capable of causing a shock to observers did not finish when the train came to rest as a twisted collection of carriages. The "shock" which caused a sudden and disturbing impression on the minds and feelings of others was not confined to whatever may have happened, or may have been experienced, in the period between the carriages of the train leaving the tracks and stopping. Rather, the consequences, which each appellant alleged he suffered as a result of what happened on that day, were said to follow from some or all of the series of shocking experiences to which he was exposed at the scene.
[Emphasis added.]
[10] Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60, [31], [37].
In Wicks v State Rail Authority of New South Wales,[11] the submission of State Rail was that neither plaintiff had witnessed at the scene the victim being killed, injured or put in peril. It was submitted that to succeed, a plaintiff must be able to demonstrate that the psychiatric injury was occasioned by the witnessing of what was happening to a particular victim. The High Court proceeded to discuss the meaning of the phrase “being killed, injured and put in peril” and in that respect reasoned:[12]
The expression "being killed, injured or put in peril" is used in s 30(1) as well as in s 30(2)(a). The evident intention of s 30(2) is to create a particular subset of cases that fall within the general description of claims "for pure mental harm ... arising wholly or partly from mental or nervous shock in connection with another person ... being killed, injured or put in peril". But the definitions of both the general class, and the particular subset created by s 30(2), hinge about another being killed, injured or put in peril. The general class is identified by reference to shock in connection with another being killed, injured or put in peril. The subset is fixed by an "unless" clause. The alternative conditions thus fixed, as necessary for membership of the subset, are first, that the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or second, that the plaintiff is a close member of the family of the victim.
Although both sub-ss (1) and (2) use the phrase "being killed, injured or put in peril", sub-s (1) applies to claims for pure mental harm arising wholly or partly from mental or nervous shock in connection with that event (another being killed, injured or put in peril); sub-s (2) requires that the plaintiff either witnessed that event or was a close relative of the victim. The reference in sub-s (1) to the event must be read as referring to an event that may (but need not) have been complete before the suffering of nervous or mental shock. By contrast, because sub-s (2)(a) requires witnessing of the event at the scene, it must be read as directing attention to an event that was happening while the plaintiff "witnessed" it.
It would not be right, however, to read s 30, or s 30(2)(a) in particular, as assuming that all cases of death, injury or being put in peril are events that begin and end in an instant, or even that they are events that necessarily occupy only a time that is measured in minutes. No doubt there are such cases. But there are cases where death, or injury, or being put in peril takes place over an extended period. This was such a case, at least in so far as reference is made to victims being injured or put in peril.
…
Contrary to State Rail's submission, the expression "being ... put in peril" should not be given a meaning more restricted than that conveyed by the ordinary meaning of the words used. More particularly, "being ... put in peril" is not to be confined to the kind of apprehended casualty which was at issue in Hambrook v Stokes Bros[13], where a mother feared a runaway lorry might have injured her child. It is not to be read as confined to the cases discussed by Evatt J in Chester v Waverley Corporation[14] by reference to the decision in Hambrook. Nor is the expression to be read down by reference to how the phrase was to be understood when used in s 4 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW). Rather, the expression should be given the meaning which the words ordinarily convey. A person is put in peril when put at risk; the person remains in peril (is "being put in peril") until the person ceases to be at risk.
The survivors of the derailment remained in peril until they had been rescued by being taken to a place of safety. Mr Wicks and Mr Sheehan witnessed, at the scene, victims of the accident being put in peril as a result of the negligence of State Rail.
[Emphasis added.]
[11] Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60.
[12] Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60, [42]-[44], [50]-[51].
[13] [1925] 1 KB 141.
[14] (1939) 62 CLR 1 at 41-42.
The remarks of the High Court have obvious relevance to the construction of section 53 of the South Australian Civil Liability Act.
It is relevant to note that section 3 of the South Australian Civil Liability Act provides definitions of the word “accident” and the words “motor accident” as follows:
accident means an incident out of which personal injury arises and includes a motor accident;
…
motor accident means an incident in which personal injury is caused by or arises out of the use of a motor vehicle;
I agree with the observations of Sulan and Parker JJ that these definitions are of significance and, in particular, the use of the word “incident” encompasses events directly related to and following on from the actual impact. The use of the phrase “is caused by or arises out of” confirms this construction.
For these reasons, I am satisfied that the plaintiff was “present at the scene of the accident when the accident occurred” within the meaning of section 53(1)(a) of the Civil Liability Act.
Causation
The only witness to give evidence was the plaintiff. Medical reports were tendered from a psychologist who treated the plaintiff and a psychiatrist who, at the request of the defendant, examined the plaintiff and prepared a report. Other documents were tendered, including photographs of the scene depicting the massive vehicle damage.
The plaintiff’s evidence set out his personal history, both before and after the death of his brother. In evidence in chief, as discussed above, he spoke of his attendance at the scene of the accident and, in particular, of his awareness on his fourth visit that there had been an accident causing extensive vehicle damage and that he realised that occupants of at least one of the vehicles were likely to have suffered horrific injuries and may well have been killed. He noted in particular the extensive damage to the passenger side of the station wagon involved in the collision. Some hours later, he was informed that his brother had died in a motor vehicle accident and realised that this was the accident the scene of which he had traversed on five occasions, witnessing the extensive vehicle damage. As discussed above, he attended the scene alone some hours later. It is evident that he was in a state of some mental anxiety, with feelings of guilt and self-blame at not having stopped and attended to his brother. It was common ground that his brother had not died instantly but had survived for some time.
It was accepted that the plaintiff had suffered mental harm and, in particular, had suffered a recognised psychiatric illness, being described as a major depressive disorder with significant anxiety-related components of a post-trauma related reaction.
Following the death of his brother, the plaintiff consulted Dr Awwad of the Athelstone Medical Clinic. Dr Awwad referred the plaintiff to Mary Johnson, a clinical psychologist. Ms Johnson saw the plaintiff on three occasions during January and February 2006. Ms Johnson formed the opinion that the plaintiff was highly depressed. Ms Johnson reported to Dr Awwad that she had requested the plaintiff to further consult with Dr Awwad with specific reference to his anti-depressant medication:
I saw Ryan on three occasions in January and February 2006. Ryan returned to see me on Tuesday. He presented as highly depressed – he has become withdrawn, has difficulty making decisions, problems with concentration and memory, has no enthusiasm or motivation, is exhausted and lethargic and is experiencing sleep problems. Ryan stated that he has no suicide ideation. He is disappointed in himself as he feels that he should be happy as his children have settled, he is in a good relationship and his work is going well. However, the younger brother of a friend has recently been killed in a m.v.a and “it’s dragged everything up” regarding his own brother.
Ryan has been attempting to deal with things on his own and I feel that he may need our help for some time. I have asked Ryan to visit you with specific reference to his anti-depressant medication which he appears to be taking inappropriately, due to financial reasons. If I can be of further assistance please don’t hesitate to contact me.
Ms Johnson reviewed the plaintiff in December 2006 and in April 2008. On 7 April 2008, he gave a history of occasional nightmares of “seeing [the] accident [and] not knowing it was Scottie”.
Ms Johnson provided two reports. She outlined her qualifications including her registration as a psychologist with a Masters Degree in Psychology (Clinical) and as holding full membership of the organisations Australian Psychological Society (APS), Institute of Private Practising Psychologists, Australian and New Zealand Association of Psychiatry, Psychology and Law, APS Division of Independently Practising Psychologists, APS Division of Research and Teaching, Australian Association of Cognitive Behaviour Therapy and Australasian Society for Psychiatric Research.
In answer to the question:
Whether you believe that any such injury is a consequence of the said motor vehicle accident and the circumstances surrounding the same.
Ms Johnson responded:
I believe that [the plaintiff’s] condition is a result of the said motor vehicle accident. In this regard the condition has a clearly identifiable onset and a clear and direct link to the motor vehicle accident that took his brother’s life on 12th. April 2005. That is, there is a direct temporal link between the motor vehicle accident death and the development of the condition, in that the latter developed directly after the former. There is also a causal relationship in that [the plaintiff’s] condition focuses directly upon the psychological traumas related to the fatal motor vehicle accident.
[Emphasis added.]
Earlier in the report, Ms Johnson had opined:
The psychological impact of effects of the motor vehicle accident in which [the plaintiff’s] brother was killed appears to be pervasive and persistent. Up to the present time, [the plaintiff] has had no professional assistance to help him deal with the emotional trauma that he suffers. He reported that after the accident he suffered feelings of guilt “I was there, I could have done something, possibly saved him”.
In the second of the reports, Ms Johnson confirmed her earlier opinion as follows:
I believe that Ryan’s psychological injury as outlined in my March 2006 report and in the previous response is a result of the said motor vehicle accident. In this regard Ryan’s physiological injury has a clearly identifiable onset and a clear and direct link to the motor vehicle accident that occurred in April 2005. That is, there is a direct temporal link between the motor vehicle accident and the development of the psychological injury, in that the latter developed directly after the former. There is also a causal relationship in that Ryan’s injury focuses directly upon the psychological traumas related to the fatal vehicle accident.
[Emphasis added.]
As noted above, Ms Johnson did not give evidence at trial. Her reports were tendered by consent.
The other medical expert was a psychiatrist, Dr Marty Ewer. Again, Dr Ewer did not give evidence and his report was tendered by consent. Dr Ewer expressed the view that the plaintiff’s psychiatric illness came on as a result of the distress caused by him receiving the news of his brother’s death, rather than as a result of what the plaintiff saw at the site of the accident. A review of Dr Ewer’s report discloses that he had a materially imperfect understanding of the plaintiff’s observations at the scene. He only noted that the plaintiff was aware of a damaged Commodore and was surprised as to how much the passenger’s side had been damaged. In particular, Dr Ewer did not take a history of the plaintiff’s awareness that the occupants of the station wagon were likely to have suffered horrific injuries and may well have been killed on his fourth occasion of driving through the intersection. As earlier noted, Dr Ewer was not called to give evidence and appears to have been unaware of the evidence given by the plaintiff at trial. This is of significance in that, as discussed above, the Judge accepted the plaintiff’s account of his observations at the scene. Dr Ewer does not appear to have addressed the possibility that there may have been several contributing causes to the psychiatric illness. Attached to his report are 10 lengthy appendices, one of which addressed causation. A review of that appendix reveals that Dr Ewer was adopting, at least in part, a scientific approach. He notes the need for careful scientific analysis and, in particular, makes reference to the “Hill Criteria”, which assesses a number of matters, including assessments of biological plausibility, gradient or dose response, and other scientific indicators.
In my view, Dr Ewer’s opinions do not materially assist on the issue of causation. It is apparent that he has proceeded without a relevant understanding of the plaintiff’s observations at the scene and that his approach to causation has proceeded substantially as a matter of a scientific analysis, rather than a consideration of the test required of a court.
Insofar as any liability at common law was to be addressed, the plaintiff satisfied the requirement of duty, breach and causation.[15]
[15] Jaensch v Coffey (1984) 155 CLR 549.
As discussed above, and as in Wicks v State Rail Authority of New South Wales,[16] the scene of an accident in cases of death, injury or being put in peril does not begin and end in an instant but can take place over an extended period and continue while persons are trapped in wreckage or remain in peril.
[16] Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60, [44], [46], [49]-[51].
Accordingly, I am satisfied that the recognised psychiatric illness suffered by the plaintiff was caused by his presence at the scene of the accident when the accident occurred.
Conclusion
I would allow the appeal. I would hear the parties as to the appropriate orders to be made.
SULAN J: I have had the advantage of reading the draft reasons of Gray J. I agree that the appeal should be allowed for the reasons he has given. There are some further observations that I wish to add.Sections 33 and 53 of the Civil Liability Act 1936 (SA) (the Act) place constraints on common law liability where a plaintiff suffers mental harm as a consequence of the negligence of a defendant. At common law, in an action in negligence claiming damages for mental harm, a plaintiff must establish that the defendant owed the plaintiff a duty of care not to cause the plaintiff mental harm, that the defendant breached that duty and that damage resulted. The often quoted analysis of this threefold test was propounded by Deane J in Jaensch v Coffey:[17]
the components of an action in negligence... are a duty of care, determined by reference to the related tests of reasonable foreseeability and proximity, breach of that duty of care and damage. In the context of subsequent development and refinement, those components can be stated, in a form appropriate to the circumstances of the present case, as being: (i) a relevant duty owed by the defendant to the plaintiff to take reasonable care resulting from the combination of: (a) reasonable foreseeability of a real risk that injury of the kind sustained by the plaintiff would be sustained either by the plaintiff, as an identified individual, or by a member of a class which included the plaintiff, (b) existence of the requisite element of proximity in the relationship between the parties with respect to the relevant act or omission and the injury sustained, and (c) absence of any statutory provision or other common law rule (e.g., that relating to hazards inherent in a joint illegal enterprise) which operates to preclude the implication of such a duty of care to the plaintiff in the circumstances of the case; (ii) a breach of that duty of care in that the doing of the relevant act or the doing of it in the manner in which it was done was, in the light of all relevant factors, inconsistent with what a reasonable man would do by way of response to the foreseeable risk (see Wyong Shire Council v. Shirt, at pp 47-48; The Wagon Mound (No. 2), at pp 641-643 and Schiller v. Mulgrave Shire Council [1972] HCA 60; (1972) 129 CLR 116, at pp 131-132); and (iii) injury (of a kind which the law recognizes as sounding in damages) which was caused by the defendant's carelessness and which was within the limits of reasonable foreseeability.
[17] (1984) CLR 549, 586.
By s 33(1), the Act requires, as a precondition to a finding that a duty of care exists, a reasonable person in the defendant’s position to have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness. Subsection (2) then lists four kinds of circumstances to which the court is to have regard to in determining reasonable foreseeability. Section 53 of the Act restricts what would otherwise be an entitlement at common law to recover damages by requiring either a spatial and temporal connection to the scene of the accident (s 53(1)(a)), or a specified relationship between plaintiff and the injured person (s 53(1)(b)).
In Wicks v State Rail Authority (NSW),[18] the High Court considered s 32 of the Civil Liability Act 2002 (NSW) (the NSW Act), a provision equivalent to s 33 of the Act. It is not in dispute that the unanimous observations by the High Court regarding the construction of s 32 of the NSW Act, apply to s 33 of the Act. Section 30 of the NSW Act is a provision similar to s 53 of the Act. In Wicks, the High Court made the following observations regarding the phrase ‘being killed, injured or put in peril’, used in both sections 30 and 32 of the NSW Act:[19]
The expression "being killed, injured or put in peril" is used in s 30(1) as well as in s 30(2)(a). The evident intention of s 30(2) is to create a particular subset of cases that fall within the general description of claims "for pure mental harm ... arising wholly or partly from mental or nervous shock in connection with another person ... being killed, injured or put in peril". But the definitions of both the general class, and the particular subset created by s 30(2), hinge about another being killed, injured or put in peril. The general class is identified by reference to shock in connection with another being killed, injured or put in peril. The subset is fixed by an "unless" clause. The alternative conditions thus fixed, as necessary for membership of the subset, are first, that the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or second, that the plaintiff is a close member of the family of the victim.
Although both sub-ss (1) and (2) use the phrase "being killed, injured or put in peril", sub-s (1) applies to claims for pure mental harm arising wholly or partly from mental or nervous shock in connection with that event (another being killed, injured or put in peril); sub-s (2) requires that the plaintiff either witnessed that event or was a close relative of the victim. The reference in sub-s (1) to the event must be read as referring to an event that may (but need not) have been complete before the suffering of nervous or mental shock. By contrast, because sub-s (2)(a) requires witnessing of the event at the scene, it must be read as directing attention to an event that was happening while the plaintiff "witnessed" it.
It would not be right, however, to read s 30, or s 30(2)(a) in particular, as assuming that all cases of death, injury or being put in peril are events that begin and end in an instant, or even that they are events that necessarily occupy only a time that is measured in minutes. No doubt there are such cases. But there are cases where death, or injury, or being put in peril takes place over an extended period. This was such a case, at least in so far as reference is made to victims being injured or put in peril.
[18] (2010) 241 CLR 60.
[19] Wicks v State Rail Authority (NSW) (2010) 241 CLR 60, [42]-[44].
It is instructive at this point to set out the provisions of s 30 of the NSW Act and s 53 of the Act.
Section 30 of the NSW Act relevantly provides:
Limitation on recovery for pure mental harm arising from shock
(1) This section applies to the liability of a person ("the defendant" ) for pure mental harm to a person ("the plaintiff" ) arising wholly or partly from mental or nervous shock in connection with another person ("the victim" ) being killed, injured or put in peril by the act or omission of the defendant.
(2) The plaintiff is not entitled to recover damages for pure mental harm unless:
(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or
(b) the plaintiff is a close member of the family of the victim.
(3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim.
(4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.
Whereas s 53 of the Act provides:
Damages for mental harm
(1) Damages may only be awarded for mental harm if the injured person
(a) Was physically injured in the accident or was present at the scene of the accident when the accident occurred; or
(b) Is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident.
(2) Damages may only be awarded for pure mental harm if the harm consists of a recognised psychiatric illness.
(3) Damages may only be awarded for economic loss resulting from consequential mental harm if the harm consists of a recognised psychiatric illness.
It is to be observed that s 30(2)(a) of the NSW Act and 53(1)(a) of the Act are not cast in identical terms. The question therefore arises as to whether the phrase ‘witnessed, at the scene, the victim being killed, injured or put in peril’, as construed by the High Court in Wicks, has the same meaning as ‘was present at the scene of the accident when the accident occurred’ for the purpose of the South Australian Act.
The appellant submits that a proper construction of s 53(1)(a) of the Act does not require the appellant to have been present at the actual time of impact between the two vehicles. It is sufficient, in the appellant’s submission, to establish a temporal connection with the scene of the accident, including its aftermath. It is submitted that the common law recognises that a road accident is not confined to the immediate point of impact and includes the events at the scene after its occurrence. As a statutory provision that alters the common law such as to restrict liability where mental harm is sustained, it is contended that s 53 ought to be construed strictly so as to impact the common law only to the extent that it is clearly impacted, and no further.
The respondent submits that the phrase “present at the scene of the accident when the accident occurred” does not encompass the aftermath of the accident and that s 53(1)(a) is concerned to abrogate the “aftermath doctrine”, as expounded at common law. It is submitted that the phrase should be given its ordinary meaning and that there is no scope for a restrictive approach to its construction. It is contended that, in contrast to the New South Wales legislation, the South Australian legislation incorporates the concept of “the accident” as well as the requirement for presence at it “when the accident occurred”. The ordinary meaning of these words, in the respondent’s submission, suggests a moment or point of time which can be identified as a matter of fact. It is contended that the requirements utilised in legislation considered by the High Court in Wicks are a much less restrictive set of requirements.
The common law has recognised the facts constituting a road accident are not confined to the immediate point of impact and include the events at the scene after its occurrence, including the extraction and treatment of the injured. In Jaensch v Coffey[20] a motorcyclist suffered very serious injuries which were caused by the negligent driving of the defendant. His wife came to the hospital to which her husband had been admitted and saw him in obvious pain. She was told the next morning by telephone that her husband was in intensive care and, later that morning, she was told that he had taken a turn for the worse and that she ought to come to the hospital straightaway. Her husband survived but the plaintiff suffered nervous shock as a result of what she had seen and had been told.
[20] (1984) CLR 549.
Deane J, in considering the scope of the duty not to cause another person mental harm, rejected the proposition that the plaintiff had to be within the area of physical risk. He said:[21]
Nor do the cases support the approach that the requirement can only be satisfied by a plaintiff who saw or heard the actual accident; both common sense and authority support the conclusion that the requirement or proximity of relationship may be satisfied by a plaintiff who has suffered psychiatric injury as a result of what he or she saw or heard in the aftermath of the accident at the scene; Benson v Lee [1972] VR 879 at 880; Storm v Geeves [1965] Tas SR 252; Chadwick v British Railways Board [1967] 1 WLR 912; [1967] 2 All ER 945.
[21] Jaensch v Coffey (1984) CLR 549, 606
He then described the aftermath of a road accident in the following terms: [22]
It has already been said that the requirement of proximity in a case of mere psychiatric injury is satisfied where injury was sustained as a result of observation of matters involved in the aftermath of a road accident at the actual place of collision. The facts constituting a road accident and its aftermath are not, however, necessarily confined to the immediate point of impact. They may extend to wherever sound may carry and to wherever flying debris may land. The aftermath of an accident encompasses events at the scene after its occurrence, including the extraction and treatment of the injured. In a modern society, the aftermath also extends to the ambulance taking an injured person to hospital for treatment and to the hospital itself during the period of immediate post-accident treatment. It would, in my view, be both arbitrary and out of accord with common sense to draw the borderline between liability and no liability according to whether the plaintiff encountered the aftermath of the accident at the actual scene or at the hospital to which the injured person had been quickly taken.
[22] Jaensch v Coffey (1984) CLR 549, 607.
As noted above, tort liability for mental harm has been modified by ss 33 and 53 of the Act. The predecessor of the current s 53 of the Act was introduced by the Wrongs Act Amendment Act 1986 (SA) as s 35A(1)(c). The Second Reading Speech referred to the decision of Coffey v Jaensch[23] and identified that the purpose of the amendment was not to significantly alter the law as it currently stood, but to prevent any further expansion of this head of damage.[24] Section 35A(1)(c) was replaced by s 24C of the Wrongs Act 1936 (SA) which extended the ambit of the provision beyond motor vehicle accidents, without significantly altering the operation of the provision.[25] Section 24C of the Wrongs Act was re-enacted as s 53 of the Civil Liability Act[26] which commenced operation on 1 May 2004. At that time, subsections (2) and (3) were inserted into the provision. Section 33 was also introduced to the regime. They formed part of a package of reforms following the Ipp Committee Report.[27] The Second Reading Speech identified the purpose of the new sections 33 and 55 and their relationship with the Ipp recommendations:[28]
Proposed new sections 33 and 55 deal with liability for mental harm and relate to Ipp recommendations 34 and 37. For the most part, they restate the existing law, but there is a departure. At present, if a person suffers bodily injury and, in consequence, also suffers mental harm, damages are payable for the effects of both, regardless of whether the mental harm amounts to a psychiatric illness or is merely mental distress. On the other hand, if the person suffers no bodily injury but only mental shock (for instance, as a bystander at an accident), there is no claim unless the shock can be diagnosed as a psychiatric illness. Ipp proposed that, in the case of consequential mental harm, damages for economic loss should be recoverable only if the mental harm amounted to recognised psychiatric illness. Proposed new section 54 embodies this rule.
[23] (1983) 33 SASR 254 affirmed by the High Court in Jaensch v Coffey (1984) CLR 549.
[24] Hansard, Legislative Council, 27 November 1986, p. 2410.
[25] Hansard, House of Assembly, 14 August 2002 at p.1034.
[26] Operative from 1 May 2004.
[27]Ipp Committee Report, Australia “Review of the Law of Negligence: Final Report” (September 2002).
[28] Hansard, Legislative Council, 15 October 2003, p 354.
The Ipp recommendation 34, referred to in the Second Reading Speech, included recovery for pure mental harm where “the plaintiff was at the scene of shocking events or witnessed them or their aftermath”[29] and “whether the plaintiff witnessed the events or their aftermath with his or her own unaided senses.”[30]
[29] Recommendation 34 (c)(ii), Ipp Committee Report, Australia “Review of the Law of Negligence: Final Report” (September 2002) p 144.
[30] Recommendation 34 (c)(iii), Ipp Committee Report, Australia “Review of the Law of Negligence: Final Report” (September 2002) p 144.
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”. The Second Reading Speech specifically states that, “for the most part, [the amendments] restate the existing law”. It is not in dispute that under the predecessor of s 53 of the Act (s 35A(1)(c) of the Wrongs Act) the facts constituting a motor vehicle accident did encompass the aftermath of an accident. [31] I do not consider either, that on a plain reading of the section, the words ‘was present at the scene of the accident when the accident occurred’ should be construed as referring only, in the case of a motor vehicle accident, to the point of collision between the vehicles. In this respect, the observations of Burchett and Ryan JJ in Thompson v Australian Capital Television PL are pertinent. They observed:[32]
Statutory reforms removing a particular plank from the edifice of the common law do not necessarily bring down whole sections of the structure just because a rule expressly changed or abolished had an historical or a logical connection with other rules of the common law. To forbid such a consequence the rule has been established (and should be adhered to: Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 322, per Brennan J) that Acts altering the common law should be construed as doing so only so far as is necessary to give effect to their provisions.
[31] See for example, Pham v Lawson (1997) 68 SASR 124.
[32] (1994) 54 FCR 513, 526.
Finally, it is necessary to consider the decision of Hoinville-Wiggins v Connelley[33] where the New South Wales Court of Appeal considered the construction of a similarly worded provision to s 53 of the Act. In that case, the plaintiff sought to bring proceedings for damages for psychological or psychiatric injury suffered in connection with a motor vehicle accident. It was alleged that the defendant struck a pedestrian outside a primary school of which the plaintiff was the principal. The plaintiff did not actually witness the motor vehicle hit the pedestrian. After being told of the accident, the plaintiff went out to the roadway and began to give the pedestrian CPR. She then thought she detected a pulse. She continued to administer CPR, until after some time it became apparent that the pedestrian was dead.
[33] [1999] NSWCA 263.
At the time, s 77 of the Motor Accidents Act 1988 (NSW) provided as follows:
77. No damages for psychological or psychiatric injury shall be awarded in respect of a motor accident except in favour of:
(a)a person who suffered injury in the accident and who:
(i)was the driver of or a passenger in or on a vehicle involved in the accident, or
(ii)was, when the accident occurred, present at the scene of the accident, or
(b)a parent, spouse, brother, sister or child of the injured person or deceased person who, as a consequence of the injury to the injured person or the death of the deceased person, has suffered a demonstrable psychological or psychiatric injury and not merely a normal emotional or cultural grief reaction.
The New South Wales Court of Appeal considered the proper construction of the phrase “when the accident occurred”. Giles JA, with whom Mason P and Stein JA agreed, observed:[34]
Close connection in space and time is required. The words "when the accident occurred" mean that it is not enough that she came to the scene of the accident after the accident had occurred, as might have happened in "rescuer" cases at common law. The claimant argued that the accident included what she described as its aftermath, and extended to her attendance to minister to the pedestrian. For the notion of aftermath she referred to Benson v Lee [1972] VicRp 103; (1972) VR 879 at 880, McLoughlin v O'Brian [1982] UKHL 3; (1983) AC 410 at 422, and Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 606-8. The passages were to do with recovery at common law of damages for nervous shock suffered not only by a plaintiff who saw or heard the accident, but also by a plaintiff who saw or heard events at the scene of the accident after its occurrence or even at a hospital during immediate post-accident treatment. They distinguished between the accident and its aftermath. Section 77 limits this common law position, because the plaintiff must have been present at the scene of the accident and must have been present at the scene of the accident when the accident occurred; the additional requirement that the plaintiff suffer injury in the accident underlines these spatial and temporal requirements. The aftermath was never part of the accident and (at least for the purposes of s 77(a)) seeing or hearing the aftermath no longer founds recover of damages.
On the clear wording of the section, I do not think it can be said that any nervous shock suffered by the claimant from her attending to assist the pedestrian can be said to have been suffered in the accident, and in particular I do not think that it can be said that she was present at the scene of the accident when the accident occurred. The claimant's case in this respect is not assisted, as was argued, if the pedestrian was alive (as shown by the pulse the claimant thought she detected) at an early part of the period of administration of CPR. The accident occurred when the opponent's motor vehicle struck the pedestrian, whether or not the pedestrian's death was immediate, and the claimant's presence in the classroom, unaware of the accident until Ms Kelly told her of it, was not presence at the scene of the accident at that time.
[34] Hoinville-Wiggins v Connelly [1999] NSWCA 263, [23].
In my view, the legislation considered in Hoinville-Wiggins can be distinguished on a number of bases. The first important distinction between the Motor Accidents Act 1988 (NSW) and the Civil Liability Act 1936 (SA) is that the former does not contain a definition of accident, whereas the latter provides:
3—Interpretation
(1) In this Act, unless the contrary intention appears—
"accident" means an incident out of which personal injury arises and includes a motor accident;
"motor accident" means an incident in which personal injury is caused by or arises out of the use of a motor vehicle;
An incident is synonymous with an event, eventuality or aftermath.[35] The definition of ‘motor accident’ should not be read narrowly. If Parliament had intended to restrict the definition of motor accident to exclude injury resulting in the aftermath of the accident, then it could have specifically excluded any injury caused in the aftermath of an accident.
[35] Roget's International Thesaurus.
In my view, the definition of a motor accident being defined as an “incident” is broad enough to encompass the events directly related to and following on from the actual impact.
The second important distinction is that the Motor Accidents Act 1988 (NSW) does not contain an equivalent provision to s 33 of the Act. As the High Court observed in Wicks, the interpretation of the limitation on the recovery of damages must be considered in the context of the provision affecting the duty. It was observed:[36]
To begin inquiries by asking whether s 30(2)(a) of the Civil Liability Act is engaged, without first deciding whether State Rail owed a duty to each appellant to take reasonable care not to cause him psychiatric injury, was to omit consideration of an important anterior question. To examine the content of the limitation on liability provided by s 30 without a proper understanding of the provisions affecting duty runs the risk of reading the limitation divorced from its statutory context.
[36] Wicks v State Rail Authority (NSW) (2010) 241 CLR 60, [15].
Accordingly, I am of the view that, in the case of a motor vehicle accident, s 53(1)(a) does not require a plaintiff to be present at the actual point of impact between the vehicles. Presence at the aftermath of an accident, as that phrase is understood by the common law, is sufficient to satisfy s 53(1)(a).
I would allow the appeal. I would hear the parties as to the appropriate orders which must follow.
PARKER J: I have had the opportunity to read the draft reasons of Gray J and the further observations made by Sulan J. I agree generally with their reasons. I would allow the appeal but wish to make some additional remarks. In my view, the decisive issue in deciding this appeal is that the terms “accident” and “motor accident” have been defined in s 3(1) of the Civil Liability Act 1936 to encompass an incident. I agree that the use of the word “incident” has extended the ordinary meaning of a motor accident to encompass events directly related to and following on from the actual impact.
I would allow the appeal and hear the parties as to the appropriate orders to be made.
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