The High Court has recently considered whether the brother of a man that was killed in a motor vehicle accident was entitled to claim damages from the negligent driver responsible for the accident. The brother of the deceased was not involved in the accident but witnessed its aftermath. He suffered mental harm upon learning that the accident had caused the death of his brother.

The High Court considered the extent of the duty of care owed by the driver to a person not involved in the accident as well as relevant South Australian statutory provisions concerning a person’s entitlement to damages for mental harm.


On 12 April 2005, Scott Philcox was travelling as a passenger in a vehicle being driven by George King. As a consequence of Mr King’s negligence, the vehicle was involved in an accident which caused the death of Scott Philcox. The brother of the deceased, Ryan Philcox, gave evidence that he travelled past the intersection where the accident had occurred on five separate occasions on the afternoon and early evening of 12 April 2005. On each of those occasions, he says that he witnessed the aftermath of the accident, including the attendance of emergency services. At that time, Ryan Philcox was not aware that the accident involved his brother.

On the evening of 12 April 2005, Ryan Philcox was informed by his parents that his brother had been killed in a motor vehicle accident. It was at that time that he came to realise that the accident scene that he had witnessed involved his brother. Ryan Philcox alleged that he suffered mental harm upon hearing about the death of his brother.

Issues on appeal

Two issues were brought before the High Court for consideration.

The first issue was whether George King owed a duty of care to the respondent, pursuant to section 33 of the South Australian Civil Liability Act (SACLA).

Section 33 of the SACLA relevantly provides that:

“A person does not owe a duty to another person to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness”

A second issue for the High Court was whether Mr Philcox was entitled to damages under section 53 of the SACLA which sets out when damages may be awarded for mental harm, and relevantly provides that:

“Damages may only be awarded for mental harm if the injured person-

  1. Was physically injured in the accident or was present at the scene of the accident when the accident occurred; or
  2. Is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident.”

The Litigation

At trial, the primary judge found that pursuant to section 33 of the SACLA, Mr King owed a duty of care to Mr Philcox. That finding was upheld on appeal to the Full Court of the South Australian Supreme Court on the basis that:

“it was reasonably foreseeable that a sibling coming upon the scene of this collision, including its aftermath would, on hearing of his brother’s death, suffer mental harm.”

As to Mr Philcox’s entitlement to damages, the trial judge and Full Court disagreed about the correct interpretation of section 53 of the SACLA.

The trial judge adopted a plain reading of section 53 and found that because Mr Philcox did not witness his brother being killed, he was not entitled to damages.

The Full Court took a different view and allowed damages to be awarded under section 53 of the SACLA. The reasoning of the Full Court was premised on two main grounds.

Firstly, it was noted that the SACLA defined “accident” to include the term “incident”. It was said that the term “incident” is synonymous with an event, eventuality and aftermath. Here, Mr Philcox witnessed the aftermath. Secondly, the Full Court relied upon the reasoning of the High Court decision in Wicks v State Rail Authority (NSW) [2010] HCA 22 which related to the interpretation of section 30 of the NSW Civil Liability Act 2002 which also deals with recovery for pure mental harm.

The High Court decision

Five Justices heard the appeal and although three separate judgements were delivered, the High Court was unanimous in allowing the appeal, and finding that section 53 of the SACLA operated to preclude Mr Philcox from obtaining an award for damages.

Although largely irrelevant, the High Court was also unanimous in upholding the finding of the trial judge and the Full Court that a duty of care was owed by the driver to Mr Philcox, pursuant to section 33 of the SACLA.

The High Court found that section 53 of the SACLA, in light of its legislative history, did not allow for an extended notion of “presence at the scene when the accident occurred”. It was determined that even if Mr Philcox was found to have been present in the aftermath of the accident, he could not be considered to have been present when the accident occurred. Therefore, section 53 clearly operated to preclude him from recovering damages.

As to the Full Court’s reliance upon the Wicks decision and the apparently analogous section 30 of the NSW CLA, the High Court found that the Full Court did not give adequate effect to the significant textual differences between the two provisions. Specifically, the High Court noted that section 30 of the NSW CLA does not require a plaintiff to be at the relevant scene at the time of the accident.

Impact of decision

There is no analogous law in Queensland restricting a person from claiming damages for pure mental harm. Accordingly, the courts in Queensland remain bound by the common law as described in the High Court decision ofJaensch v Coffey (1984) CLR 549.

It remains the case at common law that a duty of care can be owed to a person not involved in an accident, but who suffered mental harm as a consequence of its aftermath.

Kingsley Grimshaw