Carver, Tracey --- "Negligent driving, self-harm and psychiatric injury: Homsi v Homsi [2016] VSC 354" [2017] PrecedentAULA 12; (2017) 138 Precedent 45

• NEGLIGENT DRIVING, SELF-HARM AND PSYCHIATRIC INJURY
• FACTS

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NEGLIGENT DRIVING, SELF-HARM AND PSYCHIATRIC INJURY

Homsi v Homsi [2016] VSC 354

By Tracey Carver

It has long been accepted that if a claimant develops mental illness as a consequence of physical injuries which are caused by a defendant’s negligence, then their psychiatric injury will be compensable at common law.^[1] However, where a plaintiff suffers mental harm alone as a result of a wrongful act or omission, the fact that such injury is foreseeable is insufficient to establish liability.^[2] Rather, in such claims, through ‘induction and deduction by reference to the decided cases’^[3] and an elucidation of the relevant factors that might argue for or against liability, the claimant must instead convince the court that it is reasonable for the defendant to owe a duty of care to them. In this way then, at common law, duties of care have been found to be owed to ‘secondary victims’ or claimants who suffer purely psychiatric injury due to witnessing, or even hearing about,^[4] physical injury caused to a ‘primary victim’ due to a defendant’s negligence.^[5]

While the duty of care owed by defendants to secondary victims is independent of the duty which they owe to the primary victim,^[6] secondary victim cases have consistently involved circumstances where there is a pre-existing or established duty of care between the defendant and the primary victim.^[7] Such a duty exists, for example, between drivers of motor vehicles and other road-users,^[8] and in employment relationships between employer and employee.^[9] This pre-existing duty requirement helps to limit the extent of a defendant’s liability beyond primary victims to third parties. Given that many accidents have the potential to create a wide circle of mental suffering to family members and others not physically injured themselves, it then helps to protect against this form of indeterminate liability for negligence.

However, in Homsi v Homsi, the defendant was himself the primary victim. The question for the Supreme Court of Victoria, therefore, became whether a road-user owed ‘a duty of care in the driving of his motor vehicle to ensure that he did not suffer injury or death that may result in psychiatric injury to his close relatives’?^[10]

FACTS

In June 2010, Mr Homsi’s vehicle veered onto the wrong side of the road and collided with another vehicle. Understandably, Mr Homsi’s mother had a close relationship with her son.^[11] She did not witness the accident. Nor was she present during its immediate aftermath.^[12] Rather, she learnt of her son’s death by telephone soon afterwards and, as a result, suffered a severe and recognisable psychiatric injury.

DECISION

Although Ms Homsi’s claim for damages was regulated by Part 6 of the Transport Accident Act 1986 (Vic),^[13] the issue of whether her son owed her a duty to take reasonable care in his driving, so as not to cause her psychiatric injury, was governed by common law.^[14] Furthermore, this was unaffected by amendments to the Act, introduced in 2013 and repealed in 2016,^[15] which purported to allow the duty postulated.

It had previously been established^[16] that a duty of care in relation to purely psychiatric injury was more likely to be owed to a secondary victim, who does not directly witness an accident, where they have close ties with the person physically harmed. The foreseeability of mental harm to a parent, as a result of being informed of the death of a child, had also been recognised in Annetts v Australian Stations Pty Limited.^[17] Nevertheless, Ms Homsi’s claim failed on two grounds, the first being that it was not supported by authority or ‘path of analogous reasoning’^[18] to prior cases.^[19] Forrest J accepted that at common law a negligent driver of a motor vehicle might owe a ‘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’ thereby.^[20] However, his Honour likewise recognised, as discussed above,^[21] that such secondary victim cases depended ‘upon an established and pre-existing duty of care being owed by the tortfeasor to the primary victim’ as a road-user.^[22] Consequently, Forrest J, while accepting that categories of negligence liability are not closed,^[23] concluded that in a case such as the present where the primary victim had died as a result of his own negligence: ‘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’.^[24]

Secondly, Forrest J considered that there were ‘powerful policy grounds for refusing to recognise’ the duty claimed.^[25] These included that to allow a duty would:

• ‘almost certainly unlock a large number of claims against a driver who, through his or her own fault, was seriously injured or killed’.^[26] The parents of someone who is hit by a car upon running onto a road, might also recover damages from their child for psychiatric injury caused;^[27]

• interfere with family relationships, by allowing ‘a particularly undesirable type of litigation within the family involving questions of relative fault as between its members’;^[28] and

• impact upon premiums for motor vehicle registration levied by the Transport Accident Commission to fund their functions, who in making ‘forward estimates on the basis of the law as it stands’ may not have factored ‘this class of claim’ into its ‘commercial predictions’.^[29]

COMMENT

It has previously, although sometimes controversially,^[30] been recognised that requirements as to legal responsibility might be settled against a background of insurance or financial practice.^[31] However, while accepting that ‘the concept of being able to sue a close relative for the failure to protect himself or herself from harm is a totally different proposition’,^[32] the necessity to attribute fault as between family members, particularly in situations covered by insurance, is not foreign to the law of negligence. For example, in Zanner v Zanner,^[33] the New South Wales Court of Appeal was required to consider a child’s liability for severely injuring his mother while manoeuvring the family car into the carport of the family home. Nonetheless, the finding of a duty of care in Homsi v Homsi did have the potential to be used in future claims to extend liability by analogy to any person, who by their own fault suffered death or serious harm productive of foreseeable psychiatric injury to a relative.^[34] As such, the Court was perhaps right to proceed cautiously. In so doing, it implies that, in this area, parliament ‘may be the best arbiter of what the public interest requires’.^[35]

Tracey Carver is a Senior Lecturer and Member of the Australian Centre for Health Law Research, Faculty of Law, Queensland University of Technology. PHONE [phone] EMAIL [e-mail].

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^[1] See, for example, Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501.

^[2] Tame v New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35; (2002) 211 CLR 317, 331 (Gleeson CJ); Sullivan v Moody (2001) 207 CLR 562, 576 (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ); King v Philcox [2015] HCA 19; (2015) 255 CLR 304, 336 (Nettle J).

^[3] King v Philcox [2015] HCA 19; (2015) 255 CLR 304, 336 (Nettle J), see also 322 (French CJ, Kiefel and Gageler JJ); Sullivan v Moody (2001) 207 CLR 562, 579-80 (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ).

^[4] As occurred in Annetts v Australian Stations Pty Limited [2002] HCA 35; (2002) 211 CLR 317 and Gifford v Strang Patrick Stevedoring Co (2003) 214 CLR 269, where family members were told of their son and father’s death respectively, either via telephone or in person at home.

^[5] A duty of care has also been owed, absent physical injury, in relation to ‘psychiatric injury caused by direct perception of harm to oneself (or to a close family member) as a result of the tortious action of another’: Homsi v Homsi [2016] VSC 354, [32] (Forrest J). See also Shipard v Motor Accident Commission [1997] SASC 6768; (1997) 70 SASR 240, 247-8 (Doyle CJ); FAI General Insurance Co Ltd v Lucre [2000] NSWCA 346; (2000) 50 NSWLR 261, 265-7 (Mason P).

^[6] Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, 560 (Brennan J).

^[7] For example, psychiatric injury caused to secondary victims and arising from: an employment context (Annetts v Australian Stations Pty Limited [2002] HCA 35; (2002) 211 CLR 317; Gifford v Strang Patrick Stevedoring Co (2003) 214 CLR 269; Mount Isa Mines Limited v Pusey [1970] HCA 60; (1970) 125 CLR 383); a road accident (Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549).

^[8] See, for example, Edwards v Noble (1971) 125 CLR 296; Imbree v McNeilly [2008] HCA 47; (2008) 236 CLR 567.

^[9] See, for example, Smith v Charles Baker & Sons [1891] AC 325.

^[10] [2016] VSC 354, [24] (Forrest J).

^[11] Ibid [6].

^[12] The aftermath of an accident was defined in Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 as extending to observation of matters at the accident scene, ‘the ambulance taking an injured person to hospital’, and matters at the hospital ‘during the period of immediate post-accident treatment’: at 607-8 (Deane J).

^[13] The Transport Accident Commission had granted Ms Homsi the ‘serious injury certificate’ necessary for her to claim damages for injury occurring as a result of a transport accident: Transport Accident Act 1986 (Vic) s93.

^[14] In some situations, liability for negligently inflicted mental harm is governed by legislation. See, for example, Wrongs Act 1958 (Vic) pt XI (does not apply to certain claims, including transport accident cases); Civil Liability Act 2002 (NSW) pt 3; Civil Liability Act 1936 (SA) s33; Civil Liability Act 2002 (Tas) pt 8; Civil Liability Act 2002 (WA) pt 1B; Civil Law (Wrongs) Act 2002 (ACT) pt 3.2.

^[15] [2016] VSC 354, [9]-[15], [65]-[66]. See also Transport Accident Act 1986 (Vic) s93(2A), repealed by Transport Accident (Amendment) Act 2016 (Vic) s5.

^[16] Tame v New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35; (2002) 211 CLR 317, 339-41 (Gaudron J); Gifford v Strang Patrick Stevedoring Co (2003) 214 CLR 269, 289 (McHugh J).

^[17] [2002] HCA 35; (2002) 211 CLR 317, 338 (Gleeson CJ); 341, 344 (Gaudron J); 367 (McHugh J); 437 (Callinan J).

^[18] [2016] VSC 354, [64].

^[19] Ibid [26], [67].

^[20] Ibid [61].

^[21] See above note 6 and accompanying text.

^[22] [2016] VSC 354, [61].

^[23] See, for example, Donoghue v Stevenson [1932] AC 562, 619 (Lord Macmillan).

^[24] [2016] VSC 354, [62].

^[25] Ibid [26]. See also [68].

^[26] Ibid [72].

^[27] Ibid [71].

^[28] Ibid [79], referring to Greatorex v Greatorex [2000] EWHC 223; [2000] 1 WLR 1970, 1985 (Cazalet J).

^[29] Ibid [73].

^[30] See generally, Tracey Carver, ‘Insurance and the Law of Negligence: An Influential or Irrelevant Persuader’ (2011) 22(1) Insurance Law Journal 51.

^[31] See, for example, Tame v New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35; (2002) 211 CLR 317, 332 (Gleeson CJ).

^[32] Homsi v Homsi [2016] VSC 354, [81] (Forrest J).

^[33] [2010] NSWCA 343; (2010) 79 NSWLR 702.

^[34] Examples of such an extension provided by Forrest J include the liability of a ‘heroin user who unintentionally overdoses’; ‘hang glider who, through lack of care, collides with a cliff’; and ‘farmer who puts himself in a position of danger when attacked by a bull in the cattle yard’: Homsi v Homsi [2016] VSC 354, [74].

^[35] Ibid [80]-[81], referring to Greatorex v Greatorex [2000] EWHC 223; [2000] 1 WLR 1970, 1986-7 (Cazalet J).