To make a claim for damages for emotional or mental harm arising out of negligence requires establishing the Plaintiff is suffering from more than grief but a recognised psychiatric injury.
In the Queensland case of Hancock v Nominal Defendant, the Plaintiff’s son was tragically killed in a car accident. The accident occurred late at night and the Plaintiff first heard of it at 9:30 am on the following morning when his former mother-in-law rang him and told him that his son had been killed.
A psychiatrist who examined the Plaintiff diagnosed him as suffering from a Post-Traumatic Stress Disorder reaction to his son’s death constituting a chronic major depressive disorder.
The Plaintiff made a claim for damages for psychiatric injury as a result of the negligence of the driver of the car which caused the fatal collision killing his son.
The Judge at first instance found the Defendant was liable for the Plaintiff’s psychiatric injury and awarded damages in the amount $48,000.00. The Defendant appealed to the Queensland Court of Appeal and contended that that the Plaintiff’s claim for psychiatric injury must fail because it did not occur through perception of the accident leading to the death of the Plaintiff’s son or its immediate aftermath but rather the Plaintiff was told of it by another person. The Queensland Court of Appeal unanimously dismissed the appeal. In the leading judgment delivered by Davis J, his Honour noted:-
“…there is no logical or medical basis in determining liability, for any distinction to be made between psychiatric injury caused by being told of a horrific accident to a loved one and one caused by seeing or hearing that accident or being present at its aftermath. Moreover the invention of the artificial and uncertain aftermath doctrine has already demonstrated the unnecessarily restrictive nature of the arbitrary rule.”
The most recent High Court decision in Australia is one of King v Philcox. In that case, the Respondent’s brother was involved in a car accident. The Respondent drove past the accident on 5 occasions. The Respondent was told later that evening that his brother had died in the accident. He realised this was the accident, the aftermath of which he had witnessed. He subsequently developed a major depressive disorder.
The Respondent brought proceedings in the District Court of South Australia seeking damages for mental harm. The District Court found that the Respondent owed the Appellant a duty of care, but that the Appellant could not recover damages because he had failed to establish causation and did not satisfy the requirements for recovery of damages under section 53 of the Civil Liability Act (“CLA”) in South Australia which provides that damages may only be awarded for mental harm if the injured person was “… present at the scene of the accident when it occurred or is a parent, spouse or child of a person killed, injured or endangered in the accident”.
The Full Court of the Supreme Court of South Australia allowed an appeal from that decision and awarded damages. The Full Court held that the respondent satisfied the necessary requirements of duty, breach and causation, and that he was present at the scene of the accident within the meaning of s 53 of the CLA.
By grant of special leave, the Appellant appealed to the High Court of Australia. The Appellant submitted he did not owe the respondent a duty of care and that even if a duty of care existed, the respondent could not recover damages because of the operation of s 53 of the CLA. The High Court allowed the appeal, holding that while the Full Court did not err in finding that a duty of care was owed to the respondent, the respondent was not present at the scene of the accident when the accident occurred, within the meaning of s 53 of the CLA. As the respondent could not satisfy the requirements of s 53 CLA, he could not recover damages.