King v Philcox

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Kiefel,Gageler JJ.,Keane J.,Nettle J.
• Judgment Date: 10 June 2015
• Neutral Citation: [2015] HCA 19
• Docket Number: A26/2014
• Date: 10 June 2015

[2015] HCA 19

HIGH COURT OF AUSTRALIA

French CJ, Kiefel, Gageler, Keane and Nettle JJ

A26/2014

George King

Appellant

and

Ryan Philcox

Respondent

Representation

M C Livesey QC with B J Doyle for the appellant (instructed by Finlaysons Lawyers)

P A Heywood-Smith QC with G Stathopoulos for the respondent (instructed by SE Lawyers)

Civil Liability Act 1936 (SA), ss 33, 53(1)(a).

King v Philcox

Negligence — Duty of care — Mental harm — Motor accident — Civil Liability Act 1936 (SA) — Appellant negligently drove motor vehicle resulting in death of passenger — Respondent witnessed aftermath — Respondent later realised brother died in accident — Whether appellant as driver owed duty of care to passenger's brother not to cause mental harm — Whether mental harm to brother of person killed foreseeable under s 33 of Civil Liability Act — Whether sibling relationship relevant to foreseeability.

Negligence — Damages for mental harm — Civil Liability Act 1936 (SA) — Whether respondent present at scene of accident when accident occurred — Whether accident includes aftermath.

Words and phrases — ‘accident’, ‘duty of care’, ‘incident’, ‘present at the scene of the accident when the accident occurred’, ‘proximity’, ‘reasonably foreseeable’.

ORDER

• 1. Appeal allowed.

• 2. Set aside paragraphs 1 and 3.1, and paragraph 2 insofar as that paragraph relates to the setting aside of the judgment appealed against, of the order of the Full Court of the Supreme Court of South Australia made on 4 June 2014 and, in their place, order that the appeal be dismissed.

• 3. The appellant pay the respondent's costs of the appeal to this Court.

French CJ, Kiefel and Gageler JJ.

Introduction

1 On 12 April 2005 between 4.50pm and 4.55pm Scott Philcox was a passenger in a motor vehicle driven by George King, the appellant, in Campbelltown, a suburb of Adelaide. As a result of Mr King's negligence the vehicle collided with another at the intersection of Newton/Darley and Gorge Roads. Scott Philcox was fatally injured and died at about 5.30pm while trapped in the vehicle.

2 The deceased's brother, Ryan Philcox, the respondent to this appeal, heard of the accident, which caused his brother's death, a few hours later. He then realised that he had driven past the location of the accident earlier that day while the vehicle in which his brother was trapped and dying was still there. Subsequently, he developed a major depressive disorder.

3 Mr King was found by the Full Court of the Supreme Court of South Australia 1, on Ryan Philcox's appeal from the District Court of South Australia 2, to be liable to pay Ryan Philcox damages for mental harm. Mr King appeals against that decision on two grounds. The first ground is that he did not owe Ryan Philcox a duty of care. He relies upon s 33 of the Civil Liability Act 1936 (SA) (‘the Civil Liability Act (SA)’). That section confines the cases in which one person (the defendant) owes a duty of care not to cause mental harm to another (the plaintiff) to cases in which 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, have suffered a psychiatric illness. Mr King contends that the circumstances of the case did not satisfy that necessary condition. The second ground relied upon by Mr King is that because Ryan Philcox was not present at the scene of the accident when the accident occurred, he did not satisfy the condition imposed by s 53(1)(a) of the Civil Liability Act (SA) upon recovery of damages for mental harm by someone other than a parent, spouse or child of a person killed, injured or endangered in an accident. While it has not been shown to have erred in finding that a duty of care existed, the Full Court was in error in holding that Ryan Philcox was present at the scene of the accident when the accident occurred within the meaning of s 53(1)(a). That conclusion means that Ryan Philcox was not entitled to recover damages for mental harm and that the appeal must be allowed.

Procedural background

4 Although duty of care was in issue at trial in the District Court, the focus of the case was upon causation and the application of s 53(1)(a). On 10 May 2013, her Honour Judge Bampton made an order that Ryan Philcox was ‘not entitled to an award of damages for mental harm’. She did so in part on the basis that he was not present at the scene of the accident when the accident occurred within the meaning of s 53(1)(a). The Full Court of the Supreme Court of South Australia held that the primary judge had found, and found correctly, that Mr King owed Ryan Philcox a duty of care. It also held, however, that the primary judge erred in finding that Ryan Philcox was not present at the scene of the accident when it occurred. The Full Court allowed his appeal against the judgment of the District Court and awarded him damages in the sum of $69,212.75. It ordered that Mr King pay Ryan Philcox's costs of the action and of the appeal. On 14 November 2014, this Court gave Mr King special leave to appeal against the decision of the Full Court 3. Special leave was granted on the undertaking that he would not seek to disturb orders as to costs which had been made in the Supreme Court and that he would pay Ryan Philcox's costs of the appeal, including the costs of the application for special leave, in any event 4.

The District Court findings

5 The primary judge accepted Ryan Philcox's evidence, in particular, his evidence of five occasions on which he drove through or turned left at the intersection 5 and his evidence of how he learned of his brother's death. His evidence, as summarised in the primary judge's reasons, was as follows 6:

• (i) At about 5.00pm Ryan Philcox drove through the intersection on the way to pick up his girlfriend from her workplace. He noticed that an accident had occurred in the centre of the intersection. He did not think that anyone involved in it had been seriously injured.

• (ii) Shortly after 5.00pm, having picked up his girlfriend, he drove back through the intersection. Police officers were directing traffic and emergency vehicles were present. He drove back to his home at Campbelltown.

• (iii) He drove from Campbelltown with his girlfriend to her parents' home at Rostrevor for dinner. On the way he turned left at the intersection onto Gorge Road. He would have seen the vehicles involved in the accident as he went past the scene but did not take any notice of them.

• (iv) Half an hour after arriving at his girlfriend's parents' home, Ryan Philcox had to return to his home at Campbelltown to collect something. Again he passed through the intersection, which was five minutes away. He noticed a blue or grey wagon with severe damage on the passenger side on a flatbed tow-truck. The wagon had been cut open to retrieve someone and he wondered about the injuries sustained by those in the vehicle.

• (v) When he travelled back to Rostrevor from his home a short time later the intersection had been cleared.

• (vi) Ryan Philcox's parents came to his girlfriend's parents' home between 10.30pm and 11.00pm and told him that his brother had been killed in a traffic accident. He then realised that this was the accident, the aftermath of which he had witnessed, at the intersection.

• (vii) He returned to the intersection in the early hours of the following morning. He thought he stayed there for a few hours. He was angry at himself for being at the intersection and not knowing what had happened to his brother. As he put it, he was ‘angry, guilty for not knowing, [and] not stopping’.

6 In summary the primary judge held 7:

The last mentioned finding was said by the primary judge to have the result that ‘s 53(2) is not satisfied’ 9. How it related to s 53(2) was not apparent.

• (i) Mr King owed Ryan Philcox a duty of care.

• (ii) Ryan Philcox suffered mental harm within the meaning of the Civil Liability Act (SA) consisting of a recognised psychiatric illness, as a result of sudden shock upon receiving the news of his brother's death.

• (iii) Ryan Philcox did not witness, at the scene of the accident, his brother being killed, injured or put in peril and was therefore not present at the scene of the accident when the accident occurred.

• (iv) If the preceding conclusions were wrong and Ryan Philcox was present at the scene of the accident at the time the accident occurred, that circumstance did not cause the mental harm he suffered. That harm was caused when he received the news of his brother's death 8.

7 On the basis of the findings in (iii) and (iv) Ryan Philcox was held not to be entitled to damages for mental harm.

The Full Court decision

8 In the Full Court Mr King filed a notice of alternative contention challenging the primary judge's finding that he owed Ryan Philcox a duty of care 10. That contention was briefly dismissed by Gray J, who wrote the leading judgment, with which Sulan J and Parker J, who wrote shorter and separate judgments, agreed 11:

‘To my mind, the observations of the High Court in Wicks v State Rail Authority (NSW) have direct application to s 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.’(footnote omitted)

9 The approach of the Full Court to the construction and application of s 53(1)(a) of the Civil Liability Act (SA) is discussed below. Essentially, the Court found that Ryan Philcox had been present at the scene of the accident

when the accident occurred and that he thereby satisfied the condition for recovery of damages for pure mental...