Introduction
It is established law in Australia that family members who suffer psychiatric injury as a result of a negligently inflicted injury to a close relative may be owed a duty of care by the tortfeasor. This holds true even if those family members – ‘the secondary victims’ – did not witness the event.
That principle is enshrined in various decisions, the most well known being Tame and Annetts, where the High Court found an employer owed a duty to the mother of a young jackaroo who died as a result of the negligence of the employer. The mother learnt of the death by telephone.
This article analyses the recent decision of Homsi v The estate of Homsi in the Victorian Supreme Court where the deceased victim was the only tortfeasor and where his mother, as plaintiff, alleged he owed her a duty as the ‘secondary victim’. The court was required to determine whether the son owed a duty of care in driving his vehicle to ensure he did not suffer injury or death that might result in psychiatric injury to his mother.
The court found there was no such duty.
The decision
In June 2010, Mahmoud Homsi died in a car accident solely due to his own negligence. His mother, Iman Homsi, was not present at the accident or its immediate aftermath but learnt of the death by telephone and suffered a severe psychiatric reaction as a result. It was accepted the mother and son were in a close relationship.
The question of the existence of the duty came before the Honourable Justice J Forrest as a preliminary point on referral from Associate Justice Ierodiaconou.
His Honour noted it was now clearly established in Australia that the duty of care in psychiatric injury cases extends beyond that to an ‘immediate victim’. Family members who suffer psychiatric injury as a result of a negligently inflicted injury to a close relative, but who do not witness the event, may be owed a duty of care by the tortfeasor. This duty has been described as to the duty owed by the tortfeasor to a ‘secondary victim’.
His Honour stated that one constant in the secondary victim cases is the presence of an established pre-existing duty between the tortfeasor and the primary victim that gives rise to the discreet duty owed to the secondary victim. His Honour stated that the common law went no further – it did not recognise a general duty on the part of a driver of a motor vehicle not to cause psychiatric injury to a close relative as a result of injury to himself or herself. Even though there is obviously a relationship between mother and son, this relationship “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”.
His Honour could find no path of analogous reasoning to sustain the duty asserted by the mother. It was “out of left field”.
So the duty was not established.
His Honour also found that, even if the duty existed, there were strong policy reasons that militated against its imposition. Acknowledging that ‘floodgate’ arguments were often met with scepticism, His Honour noted that recognising the duty in this case would ‘unlock’ a large number of claims against drivers who had injured themselves in motor vehicle accidents through their own fault. His Honour also observed that the Transport Accident Commission in Victoria levies premiums and makes forward estimates based on the current law. It would not likely have accounted for this further category of plaintiffs when calculating premiums for motor vehicle registration.
His Honour also considered that accepting the existence of a duty owed by a road user to avoid injury to himself or herself could open the door to other members of the community who, by their own fault, suffered injury or death that was capable of producing psychiatric injury to a relative. His Honour provided three diverse examples:
- The heroin user who unintentionally overdoses;
- The hang glider who, through lack of care, collides with a cliff; and
- The farmer who puts himself in a position of danger when attacked by a bull in the cattle yard.
His Honour could not accept that the injured person or deceased owed a duty of care to his or her relatives to avoid injury or death that results in psychiatric harm to a close relative.
A final policy reason against recognising such a duty was the ‘potential interference with family relationships’. It was held that allowing someone to sue a relative over a failure to protect themselves from harm went too far, because it opened up the possibility of litigation in families involving questions of relative fault between its members.
Conclusion
His Honour extracted Lord Robertson in Bourhill v Young, whom appropriately surmised:
“There must be an end at some reasonable point to the legal consequences of a careless act – there must be a limit at some reasonable point to the extent of the duty of care towards third parties…”
His Honour’s decision helps define the limit of the duty of care owed by a tortfeasor to avoid psychiatric injury to family members of the victim.
The decision will assist in providing certainty for the TAC in leveeing its premiums and affirms the present state of case law and the understood categories of persons who owe a duty of care to avoid psychiatric injury.
This article was written by David Guthrie, Partner and Dylan Younane, Associate.