Philcox v KING - [2013] SADC 60

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PHILCOX v KING
[2013] SADC 60
Judgment of Her Honour Judge Bampton
10 May 2013
TRAFFIC LAW - STATUTORY COMPENSATION IN RESPECT OF MOTOR VEHICLE ACCIDENTS - SOUTH AUSTRALIA
MENTAL HARM - LIMITATION ON RECOVERY OF DAMAGE BY S 53 CIVIL LIABILITY ACT
RECOGNISED PSYCHIATRIC ILLNESS
Plaintiff's brother was killed in a motor vehicle accident caused by the defendant's negligence. Plaintiff claims damages for mental harm pursuant to s 53 of the Civil Liability Act (1936) (the Act).
Held: Defendant owed plaintiff a duty of care pursuant to s 33 of the Act. Plaintiff suffered mental harm as a result of a sudden shock upon receiving news of his brother's death. Plaintiff's mental harm found to consist of a recognised psychiatric illness. Plaintiff did not witness, at the scene, his brother being killed, injured, or put in peril. Plaintiff does not satisfy either of the alternative conditions prescribed by s 53 of the Act. As he was not present at the scene of the accident when the accident occurred and as a sibling of the person killed, injured or endangered in the accident, the plaintiff is not entitled to be awarded damages for mental harm.
Plaintiff not entitled to an award of damages pursuant to s 53 of the Act.
Civil Liabilty Act (1936) ss 33 & 53; Civil Liability Act (2002) NSW ss 30 & 32, referred to.
Wicks v State Rail Authority of New South Wales [2010] HCA 22, applied.
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449; Police v Holloway, Police v Vithoulkas [2013] SASC 2; Burch v South Australia (1998) 71 SASR 12; Catlow v Accident Compensation Commission (1989) 167 CLR 543; Hoinville-Wiggins v Connelly [1999] NSWCA 263, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"being killed, injured or put in peril", "duty of care", "forseeability", "recognised psychiatric illness", "witnessed at the scene, a person being killed, injured or put in peril", "present at the scene of the accident when the accident occurred", "sudden shock"

PHILCOX v KING
[2013] SADC 60
Introduction

The plaintiff, Ryan Philcox (Mr Philcox), is the brother of Scott Philcox.
Scott Philcox was the passenger in the front seat of a motor vehicle (the vehicle) driven by the defendant. The vehicle was involved in a collision (the accident) at the intersection of Newton/Darley and Gorge Roads, Campbelltown (the intersection) between 4.50pm and 4.55pm on 12 April 2005.
As a result of the collision, Scott Philcox sustained fatal injuries and died at approximately 5.30 pm on 12 April 2005 whilst trapped in the vehicle.
Ryan Philcox drove through or turned left at the intersection on five occasions after the accident had occurred. He did not know that his brother was trapped in the vehicle and that he had been fatally injured on any of these occasions. It was not until some hours after he last passed through the intersection that he was told that the accident had caused his brother’s death. Mr Philcox says by virtue of driving through or turning left at the intersection he was, as required by s 53 of the Civil Liability Act (1936) (the Act), present at the scene of the accident when the accident occurred.
He says being present at the scene of the accident when the accident occurred caused him to suffer shock and anxiety, and a recognised psychiatric illness. His claim is for damages for mental harm pursuant to s 53 of the Act.
The defendant has admitted liability for the accident, but denies he is liable to Mr Philcox. The defendant does not dispute that Mr Philcox drove through the intersection. He does, however deny Mr Philcox was present at the scene of the accident when the accident occurred.
Further, the defendant says if Mr Philcox is found to have been present at the scene of the accident when the accident occurred, he is precluded from being awarded damages because he did not suffer mental harm as required by s 53(2) of the Act. He argues that the harm does not consist of a recognised psychiatric illness caused by his presence at the scene.
Damages have been agreed in the sum of $65,000 inclusive of interest plus Medicare payments.
Ryan Philcox’s Evidence
Before I embark upon discussing Mr Philcox’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.
First occasion through the intersection
Ryan Philcox told me that on the afternoon of 12 April 2005, he dropped his daughter off to his former partner’s home at West Lakes. He was then running late to collect his girlfriend, Kylie, at 5.00pm, from her place of work at the Magill Campus Childcare Centre on St Bernards Road. He drove along Darley Road through the intersection onto Newton Road. As he drove through he noticed that an accident had occurred in the centre of the intersection. At that time he only noticed a white car and he: ‘didn’t think that anyone in that vehicle had been seriously injured from the damage. There were other people assisting, I made the decision to move on.’[1]
[1] T48.15-18.
He said that a person was controlling traffic as he passed the intersection and he was not sure whether there were any emergency vehicles in attendance at that time.
Second occasion - turning left from Newton Road into Gorge Road at the intersection
Mr Philcox said that by the time he picked up Kylie, it was after 5.00pm. Whilst he could not recall the exact time, he knew it was after 5.00pm because he was late and ‘it would have been sometime between 5.00 and 5.30’.[2]
[2] T45.9-10
After he picked up Kylie, he told her about the accident. She expressed concern that as she lived in the area, someone she knew may have been involved in the accident. He then drove back towards the scene of the accident. He said that it would have taken them less than 10 minutes to drive back down St Bernards and Newton Roads to the intersection.
He recalled that when he approached the intersection, police officers and emergency vehicles were present. He was directed to travel via the slip lane left into Gorge Road. He said that he didn’t pay a lot of attention to what was occurring at the accident scene and that Kylie didn’t recognise either of the vehicles. He said he then travelled back to his home at Campbelltown which would have taken five to 10 minutes.
Third Occasion- turning left into Gorge Road from Darley Road at the intersection
Mr Philcox said that he and Kylie had arranged to go to Kylie’s parents’ home at Rostrevor for dinner that night. He did not recall what time they left his home to travel to Rostrevor, but they wouldn’t have been at his home for more than 10 minutes.
He drove to the home of Kylie’s parents by travelling back around on to Darley Road and then left at the intersection on to Gorge Road. He said that as he approached the intersection, he noticed that things were still going on but he didn’t take notice of anything specific. He said there were still traffic restrictions in place and emergency vehicles present. He said he would have seen the vehicles involved in the accident as he went past the accident scene but he didn’t take any notice of them.
Fourth Occasion - through the intersection
Mr Philcox said that once they arrived at Kylie’s parent’s home, he was there for about half an hour and he had to go home to collect something. He drove home travelling west down Gorge Road. He said he did not recall whether he went through the intersection travelling down Gorge Road or whether he turned right from Gorge Road onto to Darley Road. He said it only took five minutes from Kylie’s parents’ house to reach the intersection. He said by that time the accident scene had ‘pretty much cleared.’[3]
[3] T56.4
On this occasion he noticed that a blue or grey wagon with severe damage to the passenger side was on a flat bed tow truck.[4]
[4] T56.9-14
He recalled realising that the wagon was far more extensively damaged than he had noted earlier. He said he noticed that the wagon had to be cut open to retrieve someone and he also recalled wondering about the injuries to the driver, let alone the passenger. He said: ‘it was quite apparent that someone had been, if not quite horrifically hurt’ killed.[5]
[5] T57.11-15
Fifth Occasion - through the intersection
Mr Philcox said that when he then travelled back to Rostrevor from his home a short time later, the accident scene had been cleared.
Mr Philcox’s parents
Mr Philcox said once back at the home of Kylie’s parents, between approximately 10.30‑11.00pm his parents arrived looking for him. They came to tell him that his brother had been killed. He said when his parents explained that Scott had died in a car accident, he realised it was the accident he had passed at the intersection: ‘and that I’d been there and I didn’t know and I didn’t stop…’.[6]
[6] T59.28-29.
He said that after being told the devastating news by his parents he:
straightaway tried to work out what I’d seen and tried to work out for myself what had happened and how I could have been there and not known it was my brother.[7]
[7] T60.4-7.
Mr Philcox accompanied his parents to tell his sister of Scott’s death. His sister’s partner then took him home to Campbelltown.
Mr Philcox said he went back to the intersection in the early hours of the following morning. He said he noticed that there were markings on the road and residual debris. He spent his time ‘looking at the lights, working out the sequence of the lights, working how it could happen, … trying to think what I’d noticed having driven through’.[8] He thinks he stayed at the intersection for a few hours. He said he was angry at himself for being at the intersection and not knowing ‘angry, guilty for not knowing, not stopping…’.[9]
[8] T61.28-31
[9] T62.7-8
Mr Philcox told me about the distress and grief he suffered upon being told of his brother’s death and in realising that he had been at the intersection and could have helped. He also told me about the ongoing impact his brother’s death has had on his personal and professional life.
The Civil Liability Act 1936
Section 33 - Mental Harm- Duty of Care and Section 53 – Damages for Mental Harm
The issues for determination in this matter require the construction and application of s 33 and s 53 of the Act.
Section 33 of the Act prescribes the duty of care with respect to mental harm and it lists matters to be taken into account in assessing the duty of care owed by the defendant. It codifies what would otherwise be a common law duty of care.
Section 33 provides
Mental Harm – Duty of Care
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 prescribes that damages for mental harm may only be awarded in limited circumstances. It limits claims for pure mental harm arising from shock by codifying and amending the law as stated in Tame v New South Wales; Annetts v Australian Stations Pty Ltd.[10]
Section 53 provides
[10] (2002) 191 ALR 449
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 should be noted that the word ‘endangered’ is used in s 53(1)(b) and the words ‘put in peril’ are used in s 33(2)(a)(ii) and (iii). ‘Endangered’ has the same meaning as ‘put in peril’.
Mental Harm is defined by the Act to mean impairment of a person’s mental condition and Pure Mental Harm means mental harm other than consequential mental harm. This is a case of pure mental harm.
Counsel for Mr Philcox made detailed submissions referring to extrinsic matters including Second Reading Speeches and previous enactments of the Act for the purpose of interpreting ss 33 and 53 of the Act to support the construction contended by Mr Philcox.
The use of extrinsic material in interpreting statutes is governed by the common law.[11]
[11] Police v Holloway, Police v Vithoulkas [2013] SASC 2 (18 January 2013)
As stated by Bleby J in Burch v South Australia[12] reference to a Second Reading Speech provides no more than an indicator of what Parliament hoped to achieve.
[12] (1998) 71 SASR 12 at 39
In the case of Catlow v Accident Compensation Commission[13] Brennan and Gaudron JJ in their joint judgment stated:
Whether or not extrinsic material is considered in interpreting a statutory provision, it is clear that the meaning attributed to the statute must be consistent with the statutory text. If the meaning which would otherwise be attributed to the statutory text is plain, extrinsic material cannot alter it. It is only when the meaning of the text is doubtful (to use a neutral term rather than those to be found in s 15AB(1) of the Acts Interpretation Act, that consideration of extrinsic material might be of assistance. It follows that it would be erroneous to look to the extrinsic material before exhausting the application of the ordinary rules of statutory construction. If, when that is done, the meaning of the statutory text is not doubtful, there is no occasion to look to the extrinsic material.
[13] (1989) 167 CLR 543 at 550
In my view, the meaning of s 33 and s 53 is clear, there is no need to consider extrinsic material other than to note that the Minister introducing the Law Reform (IPP Recommendations) Bill which included proposed new ss 33 and 55 stated that: ‘the chief purpose of the Bill is to amend some aspects of the law of negligence in the expectation of moderating the cost of damages claims and thus the cost of insurance’.[14]
[14] Second Reading Speech p351 Hansard Wednesday 15 October 2003
Mr Philcox’s Submissions
Mr Philcox argued that by virtue of s 53 of the Act he is entitled to damages for mental harm as he was ‘present’ at the scene of the accident when the accident occurred.
Mr Philcox’s counsel referred to the copy of the ambulance report in the tender book (Exhibit P3). The report records that the call for the ambulance to attend was received at 4.58pm, that the ambulance arrived at the scene at 5.00pm and that Scott Philcox’s life was declared extinct at 5.30pm on 12 April 2005.
Counsel also referred to the statement of Earnest Arthur Zosen on page six of Exhibit P3, wherein Mr Zosen said that he arrived at the scene at 5.20pm and noted that when he arrived he saw that there were two people trapped in one vehicle and that the fire and ambulance services were at the scene.
Counsel argued that this was significant because Mr Philcox’s evidence was to the effect that he went through the intersection for the first time much earlier than 5.20pm because he said when he went through he didn’t see any emergency services.
In his statement, the off-duty police officer Graham Smith said that he was travelling along Gorge Road at about 4.55pm on 12 April 2005 when he saw the accident occur. He described that the sun was setting to the north-east and it was quite bright. It was submitted that this is consistent with Mr Philcox’s evidence about the sun setting when he drove through the intersection. Mr Smith said he took charge of the scene by rendering assistance to the occupants of the defendant’s vehicle, identifying witnesses and proceeding to direct traffic through the accident scene.
It was submitted that it was Mr Smith who was in control of the accident scene on the first occasion Mr Philcox went through the intersection. It was also submitted that having regard to all of the evidence, Mr Philcox went through the intersection very shortly after the accident happened.
Mr Philcox does not assert that he was present at the actual point of impact. Rather, it is his case that at the time he went through the intersection, his brother was still alive and trapped in the vehicle. His brother was in the process of dying, he continued to suffer injury and was put in peril as a result of the accident.
Mr Philcox was not aware of the fact that his brother was dying or that he was in the vehicle on any of the occasions he went through the intersection. It was submitted that he does not need to establish that he was aware. He just has to establish, irrespective of his awareness, that his brother was in fact in peril as a result of the accident at a time he was present at the scene of the accident.
It was submitted that Mr Philcox witnessed someone being put in peril and that when he went through the intersection on the fourth occasion, he formed the impression that someone must have been seriously injured or killed in the accident.
It was submitted that s 53 of the Act needs to be read in conjunction with s 33. Mr Philcox relies on four key propositions.
1.That presence at the scene of the accident when the accident occurred is not limited to and extends beyond the point of impact to include the aftermath of the accident.
2.That s 53 is not a code for damages, it does not prescribe liability and it is overlaid by the common law as to damages, to the extent that it is not otherwise restricted by provisions in the Act.
3.That s 53 excludes damages that would otherwise be available under the liability provisions either with the aid of s 33 or supplemented by the common law.
4.That presence at the scene when the accident occurred is a temporal requirement and not a causal requirement.
Defendant’s Submissions
Counsel for the defendant submitted that it is not clear what time Mr Philcox actually first drove through the intersection.
It was submitted that a significant period of time would have passed following the accident before the off duty police officer, Mr Smith started directing traffic. This is because he had to attend to the matters that he deposed to in his statement, namely parking his car, making assessment of the passengers of the defendant’s vehicle, speaking to other motorists, telling somebody to ring an ambulance, making an assessment of the driver in the white car, and then proceeding to direct traffic, which was heavily congested.

The defendant contended that on no construction could it be said that Mr Philcox was present at the scene of the accident when the accident occurred.
On the topic of causation, the defendant said the court must rely upon the evidence of Dr Ewer, a psychiatrist, in preference to the psychologist Ms Johnson. The defendant argued that Ms Johnson is not a qualified psychiatrist and that the Act specifies that damages for pure mental harm are only to be awarded if the harm consists of a recognised psychiatric illness which requires diagnosis by a psychiatrist.
It was submitted that Mr Philcox did not describe any distress on his initial entry into the intersection and that he deliberately went back through the intersection on a number of occasions. He was able to function normally by driving his vehicle, picking up his girlfriend, going to his home and travelling to the home of his girlfriend’s parents. It was not until his parents arrived and told him of the news that he experienced shock and grief.
The defendant submitted that there is no causal link between what Mr Philcox saw at the scene of the accident and the injuries he developed. It was the news of his brother’s death that caused his injuries.
Further, the defendant said that if Mr Philcox is, in accordance with the Act, found to have been present at the scene of the accident when the accident occurred, then he would not be successful in establishing that his presence at the scene of the accident caused the psychiatric injuries that have been diagnosed by Dr Ewer.
The defendant referred to the New South Wales Supreme Court decision of Hoinville-Wiggins v Connelly[15] (Hoinville). In that decision the Court considered section 77 of the Motor Accidents Act (NSW) 1988, which precluded an award of damages for psychological or psychiatric injury in respect of a motor accident except in favour of inter alia a person who ‘was, when the accident occurred present at the scene of the accident’.
[15] [1999] NSWCA 263
The case of Hoinville involved a collision between a motor vehicle and a pedestrian outside a primary school. The plaintiff was the principal of the primary school, who at the time of the accident was inside a classroom. Another staff member came into the classroom saying ‘they’ve killed the old lady, call the ambulance’. The plaintiff went out to the roadway and began to give the pedestrian CPR. She continued to administer CPR until it became apparent that the pedestrian was dead. The plaintiff commenced proceedings alleging that it was reasonably foreseeable that those witnessing the accident or attending the scene of the accident would thereafter suffer nervous shock and that she had suffered a recognised psychiatric illness as a result of attending the scene of the accident and administering CPR.
The New South Wales Supreme Court decided that despite the plaintiff being intimately involved in the aftermath of the accident by attempting to resuscitate the victim for approximately 50 minutes, she was not, present at the scene of the accident when it occurred.
Wicks v State Rail Authority of New South Wales
Section 77 of the Motor Accidents Act (NSW) 1988 considered in Hoinville, was replaced by s 30 of the Civil Liability Act 2002 (NSW) (the NSW Act). The construction and application of ss 30 and 32 of the NSW Act were considered by the High Court in Wicks v State Rail Authority of New South Wales[16] (Wicks). As a result, the ratio in Hoinville has been superseded by the decision in Wicks.
[16] [2010] HCA 22
Section 32 of the NSW Act defines the duty of care with respect to mental harm and is similar to s 33 of the Act.
Section 30 of the NSW Act imposes a limitation upon entitlement to damages and is similar to s 53 of the Act.
The High Court in Wicks held that two policemen, who attended the scene of a train crash after the derailment had occurred, were not barred from claiming damages for psychiatric injury on the basis that they had ‘witnessed, at the scene, victims being killed, injured or put in peril’ within the meaning of s 30(2)(a) of the NSW Act.
In accordance with the High Court’s reasoning in Wicks the provisions of s 33 of the Act must be considered before s 53 is considered.
Does the defendant owe Mr Philcox a duty of care pursuant to s 33 of the Act?
Section 33 provides that a duty is not to be found unless a condition is satisfied. The necessary condition for the establishment of a duty of care is that 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.
The determination of whether the defendant ought to have foreseen psychiatric injury to a person of normal fortitude must be made with regard to the ‘circumstances of the case’. Section 33(2)(a)(i)-(iv) identifies four kinds of circumstances the court is to have regard to, namely:
(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;
It is therefore necessary to have regard to each of the four circumstances in relation to the circumstances of this case.
The four circumstances
1) 33(2)(a)(i) ) whether or not the mental harm was suffered as the result of a sudden shock
Was the mental harm suffered by Mr Philcox suffered as a result of a sudden shock?
The High Court said in Wicks:
The expression ‘mental or nervous shock’ may be understood as referring to a consequence, and ‘sudden shock’ may be understood as referring to an event or a cause. But the notion of ‘shock’, in the sense of a ‘sudden and disturbing impression on the mind or feelings; usually, one produced by some unwelcome occurrence or perception, by pain, grief, or violent emotion ([occasionally] joy), and tending to occasion lasting depression or loss of composure’,[17] is central to both.[18]
[17] Oxford English Dictionary, [2^nd ed (1989),vol xv at 293, meaning 4a.]
[18] Paragraph 30 of Wicks
There can be no doubt and it is not in dispute that receiving the news of his brother’s death from his parents on the evening of 12 April 2005 would cause Mr Philcox a ‘sudden and disturbing impression on the mind or feelings’.
The reports of the psychologist Ms Mary Johnson dated 20 March 2006 (exhibit P5), 4 March 2009 (exhibit P6) and the psychiatrist Dr Marty Ewer dated 15 June 2012 (Exhibit P8) were tendered by consent. Dr Ewar examined Mr Philcox at the request of the defendant’s solicitors.
Ms Johnson’s reports describe the effect Mr Philcox’s brother’s death has had on him. Ms Johnson’s opinion at page 3 of her 4 March 2009 report is that Mr Philcox suffers ‘from a psychological injury … best described as a Major Depressive Disorder with significant anxiety related components of a post trauma stress reaction’.
It is of note that Ms Johnson refers in her reports to Mr Philcox’s ‘psychological illness’. By contrast, Dr Ewar refers to Mr Philcox suffering a ‘psychiatric illness’ namely a Major Depressive Disorder. I am satisfied that Mr Philcox suffers mental harm which is a recognised psychiatric illness as diagnosed by the psychiatrist Dr Ewar.
The next question is what is the cause of the psychiatric illness? Ms Johnson considered the illness was caused by the fatal accident. Dr Ewar’s opinion regarding the cause is more specific. He states in his report at page 21:
Mr Philcox’s psychiatric illness came on as a result of the distress caused by him receiving the news of his brother’s death. Indeed he was not particularly distressed before this and continued along his tasks which included dining with his then girlfriend.
I prefer the evidence of Dr Ewar to that of Ms Johnson regarding the cause of Mr Philcox’s psychiatric illness.
Mr Philcox suffered mental harm as the result of a sudden shock caused upon hearing the news his brother’s death.
2) 33(2)(a)(ii)- Whether the plaintiff, witnessed, at the scene, a person being killed, injured or put in peril
Did Mr Philcox witness, at the scene, his brother being killed, injured or put in peril?
The two police officers in Wicks were among the first to arrive at the scene soon after the accident happened, and were directly involved in the rescue operations. They saw injured and deceased passengers. They each brought a claim for damages for resulting psychiatric injuries against the State Rail Authority of New South Wales (State Rail) alleging that they had suffered psychiatric injuries due to State Rail’s negligence
Section 30(2)(a) of the NSW Act, provides that a plaintiff is not entitled to recover damages for pure mental harm unless the plaintiff witnessed, at the scene, the victim ‘being killed, injured or put in peril’.
Assuming, without deciding that State Rail owed the police officers a relevant duty of care, the High Court went on to consider whether the condition in s 30(2)(a) of the NSW Act was satisfied. The High Court said the section required the witnessing of the event at the scene, which ‘must be read as directing attention to an event that was happening while the plaintiff “witnessed” it’.[19]
[19] [2010] HCA 222 para 43
The High Court held that it would not be right to read s 30(2)(a) of the NSW Act as ‘assuming that all cases of death, injury or being put in peril are events that begin and end in an instant’. There are cases, such as the scene the police officers were exposed to where death or injury, or being put in peril takes place over an extended period.[20]
[20] [2010] HCA 222 para 44
The High Court said that there were two inferences that could reasonably be drawn from the facts in Wicks. The first was that some who suffered physical trauma in the derailment suffered further injury as they were removed from the wrecked carriages. The second was that many who were on the train suffered psychiatric injuries as a result of what happened to them in the derailment and at the scene. They continued to suffer such injuries after the police officers arrived. The Court held that if either of those inferences was drawn, the police officers witnessed, at the scene, victims of the accident ‘being injured’. Even if neither of those inferences could be drawn, the police officers nevertheless arrived at the scene of the accident when those who had survived the derailment remained in peril. The police officers therefore witnessed, at the scene, victims being ‘injured’ or ‘put in peril’.
Applying the reasoning in Wicks to the facts in this case I am satisfied, having regard to all of the evidence, that the accident in which Scott Philcox was fatally injured had just occurred and the emergency services had not yet arrived when Mr Philcox first drove through the intersection.
As Scott Philcox was declared dead at 5.30pm on 12 April 2005, I find that at least on the first occasion when Mr Philcox drove through the intersection Scott Philcox had been fatally injured and his life had been put in peril.
The Oxford English Dictionary meaning of ‘to witness’ is ‘the action or condition of being an observer of an event’[21] or ‘one who is or was present and is able to testify from personal observation; one present as a spectator or auditor’.[22]
[21] Oxford English Dictionary, [2^nd ed (1989), vol xx at 464, meaning 2.b.]
[22] Oxford English Dictionary, [2^nd ed (1989),vol xx at 464, meaning 6.a.]
Mr Philcox’s evidence is that he was unaware that his brother was in the vehicle let alone had been killed, injured or put in peril each time he drove through the intersection. He was not an observer at the scene of his brother being killed, injured or put in peril. He was not present at the scene and is not able to give evidence from his own personal observation about the occurrence of the accident including its aftermath while his brother was being killed, injured or put in peril.
If the expression ‘when the accident occurred’ includes the recovery and rescue following an accident, Mr Philcox was at the time the accident occurred, passing through the scene. That is not sufficient for him to be ‘present’ and to have witnessed at the scene his brother being killed, injured or put in peril.
The Court in Wicks held, that the expression ‘being … put in peril’ should be given its ordinary meaning as follows: ‘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’.[23]
[23] at paragraph 50
Mr Philcox’s brother was put in peril until his death. Therefore, following the reasoning in Wicks, had Mr Philcox been present at the scene of the accident immediately following its occurrence and observed ‘a person being killed injured or put in peril,’ he, arguably like the police officers in Wicks, would pursuant to s 33(2)(a)(ii) of the Act, have witnessed a person being ‘killed, injured’ or ‘put in peril’.
On each occasion Mr Philcox passed the intersection, he was in the same position as any other road user passing the accident scene. Nothing he witnessed on any occasion that he passed the scene caused a ‘sudden and disturbing impression on’ his ‘mind or feelings’.
I find that Mr Philcox did not witness, at the scene of the accident, his brother being killed, injured or put in peril.
3) 33(2)(a)(iii) The Relationship between Mr Philcox and the person killed, injured or put in peril
Mr Philcox and Scott Philcox were brothers.
4) 33(2)(a)(iv) The Relationship between Mr Philcox and the defendant
There was no relationship between Mr Philcox and the defendant.
Having regard to the circumstances of this case as prescribed by s 33(2)(a)(i)-(iv) of the Act, in particular s 33(2)(a)(i) and (iii), a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in Mr Philcox’s position might, in the circumstances of this case, suffer a psychiatric illness.
In other words, it is reasonably foreseeable that a person of normal fortitude in Mr Philcox’s position might suffer a psychiatric illness as a result of the sudden shock upon seeing or hearing of his or her brother’s death.
I therefore find the defendant owed Mr Philcox a duty of care to take reasonable care not to cause him mental harm.
As such s 53 of the Act is enlivened and the question now arises whether or not Mr Philcox is entitled to damages.
Does section 53 of the Act entitle Mr Philcox to damages?
As this is a case of pure mental harm Mr Philcox can only recover damages if he satisfies the requirements set out in s 53(1) and s 53(2). He must first satisfy one of the alternative conditions prescribed by s 53(1) that:
·he was present at the scene of the accident when the accident occurred per s 53(1)(a), or
·he is one of the close family members specified in s 53(1)(b).
If he does satisfy one of the alternative conditions, before he is entitled to an award of damages, he must also satisfy the requirement prescribed by s 53(2). That is that the pure mental harm he suffers must be a recognised psychiatric illness.
As I have found that Mr Philcox did not witness, at the scene of the accident his brother being killed, injured or put in peril, he was not present at the scene of the accident when the accident occurred as required by s 53(1)(a).
The only close family members of a person who is killed, injured or endangered in the accident who may be awarded damages per s 53(1)(b) are parents, spouses, domestic partners or children. Unlike the NSW Act, siblings are not included in s 53(1)(b). As a brother, Mr Philcox does not meet the requirement prescribed by s 53(1)(b).
As Mr Philcox does not satisfy either of the alternative conditions of s 53(1), the s 53(2) requirement does not arise for consideration.
If I am wrong and Mr Philcox was present at the scene of the accident when the accident occurred and therefore does satisfy s 53(1)(a), it is necessary to consider s 53(2).
For the reasons I discuss above, Mr Philcox, unlike the police officers in Wicks, was not exposed to the accident scene, and he did not witness, at the scene of the accident, his brother being killed, injured or being put in peril pursuant to s 33(2)(a)(ii).
I find that there is no causal link between what Mr Philcox 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.
Mr Philcox suffers a recognised psychiatric illness as a result of being told the news of his brother’s horrific death.
Conclusion
In summary I find:
1.The Defendant owed Mr Philcox a duty of care.
2.Mr Philcox 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.
3.Mr Philcox did not witness, at the scene of the accident his brother being killed, injured or put in peril.
4.Mr Philcox was not present at the scene of the accident when the accident occurred.
5.If I am wrong and Mr Philcox was present at the scene of the accident at the time the accident occurred, that did not cause him mental harm.
Mr Philcox is therefore not entitled to damages for mental harm, pursuant to s 53 of the Act.