Case: KING v PHILCOX [2015] HCA 19 – Mental Harm or Shock from witnessing an accident?

Have you suffered mental harm / nervous shock as a result of witnessing an accident?

Or are you suffering from a psychological condition, such as Depression or Post Traumatic Stress Disorder, as a consequence of a family member’s death or injury which resulted from another person’s negligence?

The case below outlines who can claim for nervous shock, and the differences in the law between South Australia and New South Wales.

On 10 June 2015 the High Court of Australia handed down its Judgment in King v Philcox [2015] HCA 19, the facts of which were as follows:

  • On five separate occasions on 12 April 2005 between 5.00pm and 10.30pm, Ryan Philcox drove through or turned left at an intersection in Adelaide where a serious motor accident had occurred.
  • On one of the latter occasions, he saw that a vehicle involved in the accident had severe damage on the passenger side and that parts of that vehicle had been cut away, presumably to free its occupant. He wondered about the injuries that had been sustained.
  • At around 10.30pm that evening, Ryan Philcox was informed that his brother Scott had died in a motor accident at around 5.30pm, and realised that it was the same accident he had driven past several times that day. He imagined that, at least on some of those occasions, his brother had been inside the vehicle trapped and dying.

Mr Philcox gave evidence that he was angry at himself for being at the intersection and not knowing what had happened to his brother. As he put it, he was “angry, guilty for not knowing, [and] not stopping”.

It was accepted by the Court that Mr Philcox suffered mental harm within the meaning of the South Australian Civil Liability Act 1936 (SA), consisting of a recognised psychiatric illness (depression) as a result of sudden shock upon receiving the news of his brother’s death.

However, Section 53 of the Civil Liability Act 1936 (SA) prescribes that in such ‘nervous shock’ cases for pure mental harm, if the Plaintiff was not the parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident, then damages may not be awarded to the Plaintiff unless they themselves were present at the scene of the accident when the accident occurred.

As Mr Philcox did not fall within the class of persons listed above, and as he was not present at the scene of the accident at the moment the accident occurred, the High Court held that he was precluded from being awarded damages.
In New South Wales, a different Statute applies in the form of the Civil Liability Act 2002 (NSW). Section 30 of New South Wales’ Civil Liability Act states that where a Plaintiff did not actually witness at the scene the victim being killed, injured or put in peril, that person may still be awarded damages for pure mental harm arising from shock if they are “a close member of the family”, with that definition including the following:

  • a parent of the victim or other person with parental responsibility, or
  • the spouse or partner of the victim, or
  • a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or
  • a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.

Therefore, had an accident with similar facts and circumstances occurred in New South Wales, those persons defined and listed above as being close family members would be entitled to bring a claim for damages for any mental harm sustained as a result of their family member being killed, injured or put in peril as a result of a defendant’s negligence, despite not being a witness present at the scene when the accident occurred.

Dennis Kim