Recently, the ACT Supreme Court was tasked with determining whether the driver of a motor vehicle owed a duty of care to a bystander who witnesses an accident and suffers a phycological injury as a result.
The damages claim was brought on behalf of a lady who had sustained a psychological injury when she saw a motor vehicle strike a pedestrian in the underground carpark of a shopping centre.
The CTP insurer of the motor vehicle denied liability and took the matter all the way to trial arguing primarily that the driver of the motor vehicle did not owe a duty of care to a bystander in the plaintiff’s position as “a reasonable person in the first defendant’s position would not have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances in the case, suffer a recognised psychiatric illness if the first defendant did not exercise reasonable care”.[1]
Not surprisingly, Justice Burns of the ACT Supreme Court gave that submission short shrift confirming agreement with the decision of the High Court of Australia in Jaensch v Coffey[2] in which Justice Deane opined:
“While the relationship of the plaintiff with the threatened or injured person (eg that of spouse, parent, relative, rescuer or uninvolved stranger) may well be of critical importance on the question whether risk of mere psychiatric injury was reasonably foreseeable in a particular case, the preferable view would seem to be that a person who has suffered reasonably foreseeable psychiatric injury as the result of contemporaneous observation at the scene of the accident is within the area of which the Common Law accepts that the requirement of proximity is satisfied regardless of his particular relationship with the injured person”.[3]
Having determined that the driver owed a duty of care to the plaintiff, Justice Burns determined that the duty of care had been breached when the driver reversed the vehicle without reasonable care striking the pedestrian which breach of duty resulted in the plaintiff sustaining a psychiatric injury, namely a Post-Traumatic Stress Disorder.
Justice Burns gave judgement for the plaintiff against the defendants in the sum of $176 312.43.
It is important to note that persons who witness accidents or who maybe at the scene of accidents in the immediate aftermath of the event, exposing them to confronting circumstances that give rise to a recognised psychiatric injury, also have an entitlement to seek damages. This is the case whether such events be way of motor vehicle accident, workplace accident or other accidents occurring in a public place.
