The Supreme Court of Victoria was asked in Homsi v Homsi [2016] VSC 354, to consider a novel question: whether a child who died in a motor vehicle accident (he caused) owed a duty to his mother to ensure that he did not suffer injury or death as a result of driving his motor vehicle.

Mr Homsi died as a result of a motor vehicle accident on 25 June 2010, when his vehicle departed his lane into the path of an oncoming vehicle. His mother developed a psychiatric condition on learning of her son’s death. Mrs Homsi brought an action against the CTP insurer, alleging that her son owed her a duty of care not to suffer injury or death as a result of negligently driving his motor vehicle.

Duty of care

The Court noted that it is uncontroversial that a driver of a motor vehicle owes a duty of care to use reasonable and proper skill so as to not injure others.

In terms of pure psychiatric cases the Court noted:

…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 tortfeaser’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.

However, as to whether the scope of the duty of care would extend to include Mrs Homsi, the Court 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.

The Court determined that there was no duty of care owed by Mr Homsi to Mrs Homsi in the circumstances and that, in any event, as a matter of policy, there ought be no finding in her favour.

Policy discussion

In considering the policy implications, the Court noted that to extend the duty of care in the manner requested by Mrs Homsi would result in an opening of the floodgates and an influx of claims, which would have significant financial consequences for CTP insurers. That influx was noted to potentially cover a broad range of accident circumstances, beyond that of motor vehicles.