Claims for mental harm in South Australia - King v Philcox [2015] HCA

Published 15 Apr 2016

On 10 June 2015, the High Court of Australia handed down a significant decision; King v Philcox [2015] HCA on the contentious issue regarding claims for “mental harm” in South Australia.

On 12 April 2005, Scott Philcox was killed in a car accident as a result of the negligent driving of the defendant, George King. Ryan Philcox, the brother of the deceased and the plaintiff in the case, alleged that he drove through the location of the accident on five separate occasions in the hours after the accident. At no time on each occasion did Ryan Philcox was aware that his brother was involved in the accident. He witnessed emergency vehicles and noticed one vehicle had been cut open to retrieve an occupant.

Ryan Philcox was later informed of his brother's death and from such knowledge and based on his evidence, Ryan Philcox claimed that as a result , he suffered a recognised psychiatric illness (major depressive disorder).

Under South Australian Law, section 53(1) of the Civil Liability Act 1936 (SA) identifies the circumstances where damages may be awarded in claims for mental harm:

 (1) Damages may only be awarded for mental harm if the injured person—

(a) was physically injured in the accident or was present at the scene of the accident when the accident occurred;

Prior to this case proceeding to the High Court, the Full Court of the South Australian Supreme Court found for Ryan Philcox, noting that he was present at the scene when the accident occurred, on the basis the accident continued over a period of time.

The occurrence of the accident not only constituted the events of the collision, but rather the accident consisted of the events that followed; this being the events of the rescue and emergency efforts. The South Australian Supreme Court referred to Wicks v State Rail Authority (NSW) [2010] HCA 22 (Wicks), in support of the proposition that accidents may extend over a period of time.

It is important to realize that Wicks was decided in the context of section 30 of the Civil Liability Act 2002 (NSW) where damages for mental harm would only be awarded if

(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril.

The wording “being killed, injured or put in peril” suggested a temporal concept in accidents, which subsisted longer than the moment the accident unfolded.

In the present case, the High Court noted that section 53(1) of the Civil Liability Act 1936 (SA), in contrast is worded differently to the NSW provision, stipulating that the plaintiff was “present at the scene of the accident when the accident occurred”. The High Court held that to be present at the scene of an accident, a person must be ".....exposed to the sights and sounds of the accident" (at [53]) and Ryan Philcox did not satisfy this requirement on the facts.

The decision must now have implications in limiting the scope of the circumstances that would allow for damages to be awarded in mental harm cases, in South Australia to the least. Whether this decision will have any bearing on the policy of the NSW position remains to be seen.

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