King v Philcox [2015] HCA 19 (10 June 2015)

The High Court has set aside a damages award given by the Full Court of the Supreme Court of South Australia for mental harm the respondent suffered when he learned his brother had been killed in a motor vehicle accident some hours earlier.

The respondent had driven past the accident scene several times but was unaware that his brother had been involved in the accident until later he was told what had happened. It was only then he realised he had been driving past the intersection where his brother had lost his life. As a result of the sudden shock of being told of his brother’s death, the respondent developed a major depressive disorder.

There were two issues the High Court had to consider.

Did the appellant owe the respondent a duty of care?

All members of the Court held the defendant was under a duty of care. In doing so the operation of s 33 of the Civil Liability Act 1936 (SA) was explained. Section 33 is effectively in the same terms as s 32 of the Civil Liability Act 2002 (NSW).

Was the respondent “present at the scene of the accident when the accident occurred”?

Section 53(1)(b) permits a parent, spouse, domestic partner or child of a injured or deceased person to recover damages for mental harm in such a case, whether or not they were injured in the accident or attended the scene. Otherwise under the SA provision any other person (such as the respondent) must either be injured in the accident or “present at the scene of the accident when the accident occurred”: s 53(1)(a). French CJ, Kiefel and Gaegler JJ held that the Full Court had erred in the deciding that the respondent had been present “when the accident occurred”  and distinguished Wicks v State Rail Authority (NSW) [2010] HCA 22(2010) 241 CLR 60 on the basis of the different wording in s 30 of the NSW Act. Keane and Nettle JJ gave judgments to the same effect as the plurality.

Read the full decision here.