From: Neil Foster <>
Date: 10/06/2015 02:47:18 UTC
Subject: ODG: High Court of Australia on psych injury and motor accident

Dear Colleagues;
In King v Philcox [2015] HCA 19 (10 June 2015) the High Court of Australia (French CJ, Kiefel and Gageler JJ; Keane J; Nettle J) overturned a decision of the Full Court of South Australia in favour of the brother of a motor accident victim, who had been awarded damages for mental harm suffered as a result of the accident.
The case is interesting on the general issue of whether there was a duty of care owed to a close relative of a victim of a motor accident; in general, all the members of the Court agree that such a duty was owed, although it is only Nettle J who makes a positive finding to this effect, in what I think is a clear and helpful analysis at paras [75]-[103]. (Interesting because I think this is his Honour’s first tort decision since his recent appointment to the court, and we see his general approach to determination of a duty issue. In essence, since this case was so similar to Jaensch v Coffey except that a wife is not a brother, it was a case of “incremental” development of the law.)
All the members of the Court also note that s 33 of the Civil Liability Act 1936 (SA) now requires that, for there to be a duty of care, it must be possible to say that a plaintiff of “normal fortitude” might have suffered such harm (contrary to the common law spelled out in Tame); but in the circumstances of this case that was not a barrier to a duty of care being found.
However, in the end the plaintiff failed because of a specific piece of “tort reform” legislation adopted as part of the “Ipp reforms” (though it had roots in previous SA legislation.) Section 53 of the Civil Liability Act 1936 (SA) laid down that no recovery was possible in cases of mental harm unless the plaintiff fell within a limited category of close relatives (not including brothers), or "was present at the scene of the accident when the accident occurred.” In the somewhat unusual circumstances here, the plaintiff had driven through the intersection where his brother was killed earlier in the day on a number of occasions, noticing that an accident had occurred, but had not realised it involved his brother until later in the evening. Despite the valiant efforts of the Full Court to bring his circumstances within the terms of the legislation, the HC here all conclude that the provision is clear, that “the scene of the accident” is different to the “aftermath”, and that since the brother was not there “when” the collision occurred, he could not recover. In chilling but clear words, Keane J points out that this result seems exactly what Parliament had intended to achieve:

  [42] While it is true that the common law has recognised that a plaintiff's presence at the aftermath of an accident may found a claim for damages for mental harm, the plain intention of s 53(1)(a) of the Act is to deny the recovery of damages to persons who in those circumstances would have been entitled to recover damages for mental harm.  Legislative measures which deny the remedy of damages in certain cases of negligently inflicted personal injury are now familiar measures, taken in the public interest to preserve the general availability of the remedy by ensuring the viability and affordability of arrangements to meet the costs involved:  such measures should not be given an artificially narrow operation[1].  Given the unmistakable intention of s 53(1)(a) of the Act to cut back common law rights on a selective basis, it would be out of place to insist upon an artificial construction in order to preserve common law rights.  As was said by Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ in Australian Securities and Investments Commission v DB Management Pty Ltd[2]:

"It is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve."

[1]      Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at 284 [36]; [2003] HCA 33; Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 328‑329 [19]; [2004] HCA 40; Daly v Thiering (2013) 249 CLR 381 at 392 [32]‑[33]; [2013] HCA 45.

[2]      (2000) 199 CLR 321 at 340 [43]; [2000] HCA 7.

The Court notes the similar (NSW) legislative provision which it commented on in its earlier decision in Wicks v SRA, but (clearly correctly) points out that both the legislation and the facts were different in the earlier case.


neil foster 
Associate Professor
Newcastle Law School
Faculty of Business and Law

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