Philcox v King

Case [2014] SASCFC 38

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…

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Philcox v King [2014] SASCFC 38
Case
[2014] SASCFC 38
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CaseChat Overview and Summary

This matter concerned an appeal from a decision of the trial court regarding a claim for damages for psychiatric injury arising from a road accident. The plaintiff, Mr. Philcox, alleged that the defendant, Mr. King, was negligent in his driving, causing an accident that resulted in Mr. Philcox suffering a recognised psychiatric illness. The appeal was heard by Gray, Sulan, and Parker JJ of the Supreme Court of South Australia.

The central legal issues before the appellate court were whether the trial judge had erred in finding that the defendant owed a duty of care to the plaintiff and whether the plaintiff's psychiatric illness was caused by the defendant's negligence. Specifically, the court had to consider the application of sections 33 and 53 of the *Civil Liability Act 1936* (SA) to the common law requirements for establishing liability for mental harm in negligence. These sections impose specific preconditions for a duty of care to exist and restrict the circumstances in which damages for mental harm can be recovered.

The court's reasoning focused on the established common law principles for negligence, as articulated in *Jaensch v Coffey*, which require proof of a duty of care, breach of that duty, and resulting damage. The court examined whether the defendant's conduct met the reasonable foreseeability and proximity tests for a duty of care, and whether the plaintiff's psychiatric illness was a foreseeable consequence of the defendant's breach. The court also considered the statutory requirements under the *Civil Liability Act 1936* (SA), particularly the need for a reasonable person in the defendant's position to have foreseen that a person of normal fortitude in the plaintiff's position might suffer psychiatric illness, and the requirement for a spatial or temporal connection to the accident scene or a specified relationship with the victim.

The appellate court allowed the appeal, finding that the recognised psychiatric illness suffered by the plaintiff was caused by his presence at the scene of the accident. The court indicated that it would hear the parties further as to the appropriate orders to be made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
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)).

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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