ISSUE

In Homsi v Homsi[1] the Supreme Court of Victoria was required to consider whether a son who died in a motor vehicle accident owed a duty of care to his mother to ensure that he did not suffer injury or death as a result of driving a motor vehicle.

BACKGROUND

On 25 June 2010 the son, the Defendant, died in a motor vehicle accident.  The accident was caused solely by his negligence.

The mother, the Plaintiff, developed a psychiatric condition after learning of her son’s death shortly after the accident.

The mother brought an application before the Supreme Court of Victoria for a determination as to whether, in these circumstances, her son owed her a duty of care.

DUTY OF CARE

His Honour chronicled various authorities decided over the past century which recognised that a driver of a vehicle owes a duty of care to use reasonable and proper skill so as not to injure other persons. This duty extends to cases where the Plaintiff suffers a pure psychiatric injury.

His Honour went on to summarise the current common law principles relating to psychiatric injuries sustained as a result of motor vehicle accidents:

Hopefully, it has become apparent that I consider that the common law recognises that a negligent driver of a motor vehicle owes a duty not to cause psychiatric injury to those in the immediate vicinity of an accident or its aftermath occasioned by his or her lack of care.  The common law also recognises a discrete duty in relation to psychiatric injury sustained by close relatives (or those in some other relevant relationship, such as fellow employees or rescuers) of a person injured or killed by a tortfeasor’s negligence.  Such a duty is dependent upon an established and pre-existing duty of care being owed by the tortfeasor to the primary victim.

As to the scope of the duty of care, His Honour stated:

But the common law goes no further.  Even accepting that the categories are never closed, the common law does not recognise a general duty on the part of the driver of a motor vehicle (or, for that matter, any person who does not take sufficient care for his or her safety) not to cause psychiatric injury to a close relative as a result of injury to himself or herself.  The relationship between mother and son and foreseeability that the mother would suffer psychiatric injury as a result of the harm, injury or death is insufficient to found a duty of care on the part of the son.[2] 

Accordingly, it was held that there was no established authority which supported the proposition that the negligent son owed his mother a duty of care to avoid causing injury to himself which resulted in his mother’s psychiatric injury.

POLICY IMPLICATIONS

Despite finding that no relevant duty of care was owed by the son to his mother, His Honour went on to discuss the potential policy implications if, hypothetically, such a duty was recognised at common law.

Firstly, His Honour held that if such a duty were found to exist, ‘it would almost certainly’ open the floodgates and unlock a large number of claims previously considered as having little to no prospect of success. 

Such claims would have significant financial consequences for CTP insurers (in the case of Victoria, the Victorian Transport Accident Commission) who, understandably, may not have taken into account increased claim costs as a result of a duty of care that had not previously been recognised at common law.

His Honour also considered the potential for a ‘knock on effect’ in the community.  For example, the prospect of claims pursued by close relatives of a heroin user who unintentionally overdoses or a hang glider who, through his or her own lack of care, collides with a cliff.

Secondly, the existence of such a duty would have the undesirable potential of interfering in family relationships by raising questions of fault or blame between family members.

DECISION

His Honour held that there were two fundamental reasons why the son did not owe a duty of care to his mother in these circumstances:

  1. There is no authority in this country which supports the proposition that a negligent tortfeasor owes a duty of care as asserted by the Plaintiff;
  2. In any event, there are powerful policy grounds for refusing to recognise such a duty.[3]

SUMMARY

At common law, a person does not owe any duty of care to a close relative not to injure themselves as a result of driving a motor vehicle.