A mother who allegedly suffered psychological injury as a result of being told over the telephone that her son had died in a car accident (for which he was solely at fault), has been unsuccessful in her claim for damages. The Supreme Court of Victoria found that there was no authority to support the proposition that the son owed his mother a duty of care to avoid causing injury to himself which may result in psychiatric injury to his mother.
On 25 June 2010, 26-year-old Mahmoud Homsi died in a motor vehicle accident when the vehicle he was driving veered onto the wrong side of the road and collided with a vehicle driven by Jose Jipson. Mr Jipson’s daughter, who was a passenger in Mr Jipson’s vehicle, also died as a result of the accident.
The accident was solely due to Mahmoud’s negligence.
Mahmoud’s mother, Iman Homsi, learnt by telephone of her son’s death soon after it occurred.
In December 2012, the Transport Accident Commission granted Ms Homsi a serious injury certificate, pursuant to s 93 of the Transport Accident Act 1986 that she suffered a severe psychiatric reaction to Mahmoud’s death.
Ms Homsi commenced proceedings in the Supreme Court of Victoria, claiming that she suffered psychological injury, loss and damage. She alleged that she suffered a severe psychiatric reaction and has not worked since Mahmoud’s death. She claimed that Mahmoud“owed her a duty of care in the driving of his vehicle to ensure that he did not suffer injury or death and that, as a consequence of his negligent driving and breach of the duty owed, she suffered psychiatric injury, loss and damage”.
His Honour Forrest J noted that the real issue in the case was the negligent driving of Mahmoud and whether that gives rise to a duty of care to his close relatives who suffer psychiatric injury as a result.
His Honour noted that the common law does recognise that a negligent driver of a motor vehicle owes a duty not to cause psychiatric injury to those in the immediate vicinity of an accident, and also a discrete duty in relation to psychiatric injury sustained by close relatives of a person injured or killed (such a duty dependant upon an established and pre-existing duty being owed by the tortfeasor to the primary victim). However, “the common law goes no further … the common law does not recognise a general duty on the part of the driver of a motor vehicle … not to cause psychiatric injury to a close relative as a result of injury to himself or herself”. Forest J found that Mahmoud did not owe his mother a duty of care, on the basis that there is no authority which supports the claim that a negligent tortfeasor owes a duty of care as claimed by Ms Homsi, and secondly that there are many policy grounds for refusing to recognise such a duty.
Ms Homsi was not at the scene of the accident; she did not witness the accident; she was not an immediate victim; nor does it give rise to a secondary victim duty. Forrest J found that there is no authority which supports the proposition that Mahmoud owed his mother a duty of care to avoid causing injury to himself which may result in psychiatric injury to Ms Homsi. There is no such duty as alleged by Ms Homsi.
His Honour also noted the “floodgates” argument should such a duty be recognised at law.
Accordingly, the court dismissed Ms Homsi’s claim: Homsi v Homsi  VSC 354.
This article was written by Jackie Waugh, Wolters Kluwer Torts editor, and first appeared in the Australian Torts, Personal Injury, Health & Medical Law Tracker.