Category Archives: Compensation to relatives

King v Philcox [2015] HCA 19

ON 10 JUNE 2015, the High Court of Australia delivered King v Philcox [2015] 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).”

http://www.austlii.edu.au/au/cases/cth/HCA/2015/19.html

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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Dey v Victorian Railways Commissioners [1949] HCA 1

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 (22 February 1949).

“Workers’ Compensation – Injury by accident arising out of or in course of employment – Death of worker – Negligence of employer – Option of dependants to apply for compensation or take other proceedings – Award of compensation obtained by widow on behalf of herself and children – Effect of award as barring claim by dependants under Lord Campbell’s Act – Workers’ Compensation Acts 1928- 1946 (No. 3806 – No. 5128) (Vict.)* – Wrongs Act 1928 (No. 3807) (Vict.), Part III. – The 1946 Workers’ Compensation Rules, rr. 8, 81.*
Practice – Supreme Court (Vict.) – Dismissal of action – Abuse of process – Inherent jurisdiction – Rules of the Supreme Court (Vict.), Order XXV., rr. 2, 4.”

http://www.austlii.edu.au/au/cases/cth/HCA/1949/1.html

A widow who had received a workers compensation award for her late husband’s death was not entitled to maintain a compensation to relatives action in her own right but the infant children were competent to sue by their next friend.

Per Dixon J at 91:

“The application [to dismiss proceedings on the grounds of being frivolous, vexatious and abuse of process] is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

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Nguyen v Nguyen [1990] HCA 9 | 8 March 1990

COMPENSATION TO RELATIVES. ON THIS DAY in 1990, the High Court of Australia delivered Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 (8 March 1990).

In this matter, a widower was able to claim the loss of unpaid domestic services of his late wife.

In a Lord Campbell’s Act claim, a loss may include the value of services the deceased would have provided around the home.

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Lord Campbell’s Act (UK) | 26 August 1846

ON 26 AUGUST 1846, the UK Parliament passed the Fatal Accidents Act 1846, also known as Lord Campbell’s Act.

Close relatives of a person killed by the wrongdoing of another were entitled by this Act to recover damages that the common law did not previously allow. The provision has been legislated in common law jurisdictions around the world. The Compensation to Relatives Act 1897 (NSW) introduced similar provisions in New South Wales.

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Sydney, Australia

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Chaina v Presbyterian Church (NSW) Property Trust (No. 25) [2014] NSWSC 518

ON 23 MAY 2014, the Supreme Court of NSW delivered Chaina v Presbyterian Church (NSW) Property Trust (No. 25) [2014] NSWSC 518 (“Scots College case”).

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=171197

The parents of a deceased schoolboy and a company related to the parents were awarded damages against the boy’s school arising from admitted negligence causing the boy’s drowning on a school hike in 1999.

The court found that the parents suffered mental harm which resolved by June 2001.

The parents were awarded damages which included an amount of $75,000 for their costs associated with the coronial inquest.

The father was awarded $202,486, the mother was awarded $138,887 and both were awarded $95,00 jointly. The associated company was awarded $56,000 with respect to a claim for loss of services (per quod servitium amisit) arising from the inability of the parents to work whilst suffering from the mental harm.

The amount awarded to the company was significantly less than that which the company had sought.

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Sydney, Australia

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Taylor v The Owners – Strata Plan No 11564 & Ors [2014] HCA 9

ON 2 APRIL 2014, the High Court of Australia delivered Taylor v The Owners Strata Plan 11564 [2014] HCA 9.

The appellant, Susan Taylor, successfully appealed a decision of the NSW Court of Appeal with respect to a claim for a fatal accident  involving her late husband, Craig Taylor.  The deceased was killed on 7 December 2007, when an awning outside a shop on Sydney Road, Balgowlah, collapsed on him. The appellant made a claim under the Compensation to Relatives Act 1897 on her own behalf and on behalf of the dependants of the deceased. Part of the claim involved a loss of expectation of financial support.

The High Court held that s12(2) of the Civil Liability Act 2002 (NSW) (which limits damages for economic loss and loss of expectation of financial support) does not apply to claims under the Compensation to Relatives Act 1897 (NSW).  It was held that Act is to be construed so that the limits imposed by the section related to the “claimant” but not the deceased.  Accordingly, when assessing damages for loss of expectation of financial support, the court was not required to disregard the amount by which the deceased’s gross weekly earnings, but for his death, would have exceeded three times the average weekly earnings.

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Stuart v Kirkland-Veenstra [2009] HCA 15

Stuart v Kirkland-Veenstra [2009] HCA 15 (22 April 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/15.html

“TORTS – Negligence – Duty of care – Where Mental Health Act 1986 (Vic), s 10 empowered police to apprehend person who “appears to be mentally ill” if reasonable grounds for believing that person had recently attempted suicide or likely to do so – Where police came upon man who appeared to have been contemplating suicide but showed no sign of mental illness – Interaction of common law and relationship established by s 10 – Whether duty of care to prevent foreseeable harm to man at own hand – Relevance of conditions engaging exercise of statutory power – Relevance of fact that duty alleged is duty to protect person from self-harm – Relevance of general rule against duty to rescue – Relevance of vulnerability of particular class of persons – Relevance of control over source of risk to persons.

TORTS – Negligence – Duty of care – Where duty alleged to arise in context of power conferred by Mental Health Act 1986, s 10 – Whether preconditions to existence of power established on facts – Whether common law duty could exist in absence of relevant power.

TORTS – Breach of statutory duty – Relevance as alternative to action alleging breach of common law duty of care – Principles relevant to determining legislative intention that cause of action be available – Relevance of legislative provision for special measures to protect identifiable class of persons or property – Whether existence of discretion to exercise power inconsistent with existence of statutory duty.

STATUTES – Interpretation – Whether person who has attempted suicide to be equated with person “mentally ill” – Relationship between attempted suicide and mental illness – Understanding at common law of relationship between suicide and mental illness.

WORDS AND PRRASES – “mentally ill”.

Crimes Act 1958 (Vic), ss 457, 463B.
Mental Health Act 1986 (Vic), ss 3, 8, 10.
Wrongs Act 1958 (Vic), Pt III.”

The court decided that two police officers did not owe a duty of care to a man who took his life; nor to his surviving spouse. Earlier in the day of the deceased’s death the officers had observed an apparent suicide attempt by the deceased but were satisfied that he sounded rational and was responsive to their questions.

The law does not create an obligation to rescue another from harm and in this case there were no special features outside of the general rule.

As the police officers had not formed the view that the deceased was mentally ill, they had no power to apprehend him and have him assessed under the Mental Health Act.

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Sydney, Australia

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Civil Liability Act 2002 (NSW)

ON THIS DAY IN 2002, some parts of the Civil LIability Act 2002 (NSW) are taken to have commenced.

http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/

 

Nguyen v Nguyen [1990] HCA 9

COMPENSATION TO RELATIVES. ON THIS DAY in 1990, the High Court of Australia delivered Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 (8 March 1990).

In this matter, a widower was able to claim the loss of unpaid domestic services of his late wife.

In a Lord Campbell’s Act claim, a loss may include the value of services the deceased would have provided around the home.

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Law Reform (Miscellaneous Provisions) Act 1944 (NSW)

ON 8 DECEMBER 1944, the NSW Parliament enacted the Law Reform (Miscellaneous Provisions) Act 1944.

http://www.austlii.edu.au/au/legis/nsw/consol_act/lrpa1944404

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