Homsi v Homsi: Key Considerations for Plaintiff Lawyers

By Nada Breik

As personal injury lawyers, we often encounter deeply emotional and complex cases involving psychiatric injuries suffered after the death of a loved one. These claims require a nuanced understanding of duty of care principles, proximity, and policy considerations.

This article aims to highlight key aspects of these cases, particularly in light of the Victorian Supreme Court decision in Homsi v Homsi [2016] VSC 354 (“Homsi”).

Homsi Decision

In Homsi v Homsi, the plaintiff, a mother, suffered a severe psychiatric reaction after learning of her son's death in a car accident caused by his own negligence. The court had to determine whether the son owed his mother a duty of care to avoid causing her psychiatric injury.

The court ultimately found that the son did not owe his mother a duty of care in these circumstances.

This decision underscores the challenges in establishing a duty of care in psychiatric injury claims, especially when the injury arises from the death of a negligent loved one.

Key Considerations for Establishing a Duty of Care

When assessing the viability of a psychiatric injury claim following the death of a loved one, several factors must be carefully considered, as put forward by the judges in Homsi:

• Foreseeability is Insufficient: Establishing a duty of care in psychiatric injury cases requires more than just demonstrating that the psychiatric injury was a reasonably foreseeable consequence of the defendant's actions.

• Immediate vs. Secondary Victims: The law distinguishes between "immediate victims" (those who directly witness the event or its immediate aftermath) and "secondary victims" (those who suffer psychiatric injury as a result of harm to another person).

• Immediate Victim Claims: For immediate victims,close physical proximity to the event or its aftermath is crucial. Homsi makes clear that to be an immediate victim, the person must be in close or immediate physical proximity between the plaintiff and the tortious event occasioned by the negligence of the defendant, which gives rise to the psychiatric injury

• Secondary Victim Claims:For secondary victims, there must be an established pre-existing duty between the tortfeasor and the primary victim. Examples of pre-existing duties of care are in Pusey and Tame and Annetts and Gifford by an employer, and in Jaensch and King by a road user.

• Policy Considerations: Courts are often hesitant to expand the scope of duty of care in psychiatric injury cases due to policy considerations. The Homsi decision highlights concern about opening the floodgates to litigation and interfering with family relationships.

The Importance of Proximity

The concept of proximity remains central to determining the existence of a duty of care. As Nettle J stated in King, proximity directs attention towards the relationships between the parties and the factual circumstances of the case. It requires a judicial evaluation of the factors that support or oppose the conclusion that it is reasonable for a duty of care to arise.

Navigating Legislative Restrictions

It's important to be aware of legislative interventions that limit claims for damages in tort. For example, the Homsi case references amendments to the Transport Accident Act 1986 (Vic). While some of these amendments were later repealed, they illustrate the legislature's willingness to restrict recovery for certain types of claims.

Lessons for Plaintiff Lawyers

• Thoroughly investigate the facts:Carefully examine the circumstances surrounding the death and the plaintiff's relationship with the deceased to determine whether a duty of care can be established.

• Assess proximity: Determine whether the plaintiff was an immediate victim with close physical proximity to the event or a secondary victim with a pre-existing relationship between the tortfeasor and primary victim.

• Anticipate policy arguments:Be prepared to address policy considerations that may weigh against the imposition of a duty of care.

• Stay informed about legislative changes: Keep up-to-date on legislative amendments that may affect the availability or scope of damages in psychiatric injury cases.

Conclusion

Psychiatric injury claims following the death of a loved one present unique challenges for plaintiff lawyers. A deep understanding of duty of care principles, proximity requirements, and policy considerations is essential for successfully navigating these complex cases. By carefully analysing the facts, assessing the legal precedents, and anticipating potential defences, we can effectively advocate for our clients and help them obtain the compensation they deserve.

Other case law referenced:

• Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361.

• King v Philcox [2015] HCA 19.

• Tame and Annetts (2002) 211 CLR 317.

• Dulieu v White & Sons (1901) 2 KB 669.

• Pusey (1970) 125 CLR 383.

• Jaensch v Coffey (1984) 155 CLR 549.

• Shipard v Motor Accident Commission (1997) 70 SASR 240.

• Lucre (2000) 50 NSWLR 261.

• Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185.

• Sullivan v Moody (2001) 207 CLR 562.

• Cattanach v Melchior (2003) 215 CLR 1.