The High Court has unanimously allowed an appeal from the South Australian Supreme Court on mental harm in negligence law. After the plaintiff’s brother died in an accident caused by the defendant’s negligent driving, the plaintiff drove by the scene of the accident several times and saw that someone had been seriously hurt or killed but not realising that the victim was his brother. Devastated by the idea of being at the scene but not knowing or stopping, the plaintiff was later diagnosed with a serious psychiatric illness as a form of mental harm. The SASC allowed an appeal against the trial judge’s decision to dismiss the plaintiff’s appeal, holding that under s 33 of the Civil Liability Act 1936 (SA) the defendant owed a duty of care to the plaintiff on the basis that it was reasonably foreseeable that a sibling coming upon the scene or aftermath of the accident would on hearing of the death suffer mental harm, and that witnessing an accident does not require that a person is actually present at the impact.

The High Court (French CJ, Kiefel & Gageler JJ, Keane J & Nettle J concurring) held that the SASC erred in its construction of s 53 of the Civil Liability Act 1936 (SA), which required that the plaintiff be ‘present at the scene of the accident when the accident occurred’. That section was not satisfied here, because the plaintiff’s presence (assuming that it was at the scene of the accident) did not coincide with the accident.  Although not necessary to decide, the plurality held that it could not be said that the SASC’s finding that the defendant owed a duty of care to the plaintiff was wrong. Nevertheless, because s 53 was not satisfied, the defendant could not recover damages for mental harm arising from his brother’s accident.  Keane J concurred in the ruling that s 53 was not satisfied, holding that the plaintiff was neither present at the scene nor present when the accident occurred. Nettle J held that the defendant owed a duty of care to the plaintiff, but concurred in the holding that s 53 not satisfied because it did not extend to the ‘aftermath’ of the accident.