ON 10 JUNE 2015, the High Court of Australia delivered King v Philcox  HCA 19 (10 June 2015).
“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”.
Civil Liability Act 1936 (SA), ss 33, 53(1)(a).”
The High Court upheld an appeal from a decision of the Full Court of the Supreme Court of South Australia, holding that the respondent could not recover damages for mental harm because of the operation of s53 of the Civil Liability Act 1936 (SA).
Section 53 provides that a plaintiff who is not a close relative to a person injured, killed or endangered in an accident may not recover damages for mental harm unless the plaintiff was physically injured or “present at the scene of the accident when the accident occurred”.
The respondent’s brother was killed in a motor accident caused by the appellant. The respondent had driven past the accident scene on five occasions after the accident but before the scene was cleared, not knowing that the accident involved his brother. He later learned that his brother had died in a car accident and released that he had witnessed the aftermath. He subsequently developed a major depressive disorder.
The High Court found that the respondent was not present at the scene of the accident when the accident occurred and therefore, because of s53, was not entitled to damages for the mental harm that he suffered.
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