Tag Archives: Sydney Compensation Lawyers

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).”


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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New South Wales v Williamson [2012] HCA 57

“COSTS – Limit on maximum costs in connection with claim for “personal injury damages” – Legal Profession Act 2004 (NSW), s 338 – Where “personal injury damages” defined to have same meaning as in Civil Liability Act 2002 (NSW), Pt 2 – Whether maximum costs limitation applies to claims for personal injury damages resulting from intentional acts.

COSTS – Limit on maximum costs in connection with claim for “personal injury damages” – Legal Profession Act 2004 (NSW), s 338 – Claim for false imprisonment not claim for “personal injury damages” – Where such claim is included in claim for damages and not severable part of claim, the claim for damages not claim for “personal injury damages”.

STATUTORY INTERPRETATION – Principles – Reading provision in context – Whether, when operative statute adopts term in source statute, account must be taken of operation of term in source statute – Effect of amendments to statute.

WORDS AND PHRASES – “award of personal injury damages”, “claim for personal injury damages”, “false imprisonment”, “maximum costs”, “personal injury damages”, “same meaning”.

Civil Liability Act 2002 (NSW), Pt 2, ss 3B, 11.
Legal Profession Act 2004 (NSW), Pt 3.2 Div 9, ss 337, 338.”


In New South Wales v Williamson [2012] HCA 57 (12 December 2012), the High Court of Australia dismissed an appeal against a decision of the NSW Court of Appeal who had dismissed an appeal against a decision of the Supreme Court of NSW in which that court held that Williamson’s costs were not regulated by s338(1) of the Legal Profession Act 2004 (NSW).

Williamson had settled an action against the State for the amount of $80,000 plus costs, as agreed or assessed, for damages in an action that pleaded allegations of trespass and false imprisonment on the part of police officers. Williamson and the State could to agree to costs and the State sought a declaration that the costs they were liable to pay were regulated by s338(1).

Section 338(1) provided that where the amount recovered on a claim for personal injury damages did not exceed $100,000, the maximum costs for legal services provided to a plaintiff were fixed at 20% of the amount recovered or $10,000, whichever is greater.

The High Court dismissed the State’s appeal. It held that actions for trespass are regulated by s338(1) but actions for false imprisonment are not as they are a claim for deprivation of liberty, not personal injury.

Per French CJ and Hayne J at [8]:

‘At least to the extent to which the claim for false imprisonment seeks damages for deprivation of liberty and loss of dignity, it is not a claim for damages for personal injury. Because no part of the lump sum settlement can be attributed to either the respondent’s claim for trespass or his claim for false imprisonment, it is not possible to say of the amount that was recovered that it was “recovered on a claim for personal injury damages”‘.


Sydney, Australia

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Brisbane South Regional Health Authority v Taylor [1996] HCA 25

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; (1996) 139 ALR 1; (1996) 70 ALJR 866 (2 October 1996).

“LIMITATION OF ACTIONS – Personal injury – Extension of limitation period – Exercise of discretion to grant extension – Whether fulfilment of statutory conditions gives rise to presumptive right to an order extending limitation period – Rationales for existence of limitation periods – Presumption of prejudice where long delay – Whether justice of the case required granting of extension – Actual prejudice – Limitation of Actions Act 1974 (Q) s 31.”


An application for an extension of a time limitation should be refused if an extension would result in significant prejudice to a defendant.

Per Toohey and Gummow JJ at p547:

“There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) [1964] VicRp 103; [1964] VR 788 at 793 in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474:

`It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.'”

Per Toohey and Gummow J at 548-9:

“The material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.”

Per Toohey and Gummow JJ at p550:

“The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”

Per McHugh J at p551:

“An applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.”

Per McHugh J at p552-3:

“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost[16]. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed[17]. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them[18]. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period[19]. As the New South Wales Law Reform Commission has pointed out[20]:

‘The potential defendant is thus able to make the most productive use of his or her resources[21] and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided.[22] To that extent the public interest is also served.’

Even where the cause of action relates to personal injuries [23], it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible[24].”

Per McHugh J at p555:

“To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.”

Per McHugh J at p555:

“When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underling limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action.”


Sydney, Australia

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