By Matthew Skelly, Associate
Ivers v Mehdi  ACTSC112
We were recently involved in a claim commenced in the Supreme Court of the Australian Capital Territory involving a claim for personal injury for pure mental harm. We acted for the Third Party joined by the Defendants and successfully negotiated our client’s early release from the proceedings with a judgment entered in our client’s favour.
A claim for pure mental harm suffered by a stranger bystander is rare and success largely rests on the facts of the claim accepted by the Court.
This claim centred around a story of heroics by a public servant saving the life of an innocent man, William Atkinson, who had been hit and almost run over by a car. This claim emphasised the importance of the recount of the accident to a Court when making findings in cases of this kind.
On 25 November 2016 Mr Mehdi (the First Defendant) was the manager at a car wash located in the underground car park at Canberra Outlet Centre in Fyshwick, ACT.
At trial Ms Ivers gave evidence that on 25 November 2016 after returning to her car parked adjacent to the car wash, she heard screaming from behind her. She “initially just sat there listening” but eventually she turned to look over her right shoulder and saw a bright blue Ford Ranger reversing into the wash bay, driven by the First Defendant.
On further investigation she saw a “bald head and an arm outstretched, laying across the wash bay toward the back”, under the rear passenger side of the Ford Ranger. Ms Ivers gave evidence she saw the Ford Ranger “rock backwards and forwards”, as if trying to drive over the man. In seeing this, Ms Ivers jumped into action alerting the driver stop.
In her evidence Ms Ivers stated as she approached accident, the screaming stopped and she thought Mr Atkinson was dead. Luckily, seconds after the screaming stopped Mr Atkinson moved showing signs of life. Ms Ivers gave evidence that she was the person who called Mrs Atkinson, who was shopping in the Centre, and 000 to respond to the incident.
Neither the First Defendant nor Mr Atkinson gave evidence at the hearing, disputing the recount of events. However, the incident was captured on CCTV.
As a result of witnessing the incident, Ms Ivers was diagnosed with PTSD and she alleged all aspects of her life was affected.
The duty of care owed to a person in relation pure mental harm has been restricted by statute. Section 34 of the Civil Law (Wrongs) Act 2002 (ACT) (similar to section 32 of the Civil Liability Act 2002 (NSW)) states:
- A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
- For the application of this section in relation to pure mental harm to a person, the circumstances of the case to which the court must have regard include—
- whether or not the mental harm was suffered as the result of a sudden shock; and
- whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger; and
- the nature of the relationship between the plaintiff and anyone killed, injured or put in danger; and
- whether or not there was a pre-existing relationship between the plaintiff and the defendant.
Ms Ivers, prior to the incident, had no relationship or connection with Mr Atkinson. Therefore, this matter rested on what Ms Ivers was accepted as having witnessed.
The Defendants denied liability, on the basis of Section 34 of the Civil Law (Wrongs) Act 2002 (ACT) submitting:
- Firstly the incident as recorded by the medical experts and the treatment notes were inconsistent with each other and Ms Iver’s evidence.
- Secondly Ms Ivers was not of normal fortitude, and on the basis Mr Atkinson was not killed, a reasonable person of normal fortitude would not have suffered a mental harm.
Justice Burns rejected both arguments, accepted Ms Ivers’s history of the incident, and found on the evidence Ms Ivers met the requirements to establish the First Defendant’s negligence and be entitled to damages for pure mental harm.
Justice Burns, at  stated:
As someone who witnessed at least part of the accident, who was present at the scene and ran to provide assistance to Mr Atkinson, the plaintiff falls within the class of persons whom the first defendant should have foreseen may suffer a recognised psychiatric injury if he negligently collided with a pedestrian.
Justice Burns continued to find section 34 ought to be interpreted from the perspective of the Plaintiff. His Honour held from the vantage point of Ms Ivers she believed Mr Atkinson had been seriously injured or killed, which objectively, if observed by a person of normal fortitude, might foreseeably cause them to suffer a recognised psychiatric illness.
This case has confirmed, the requirements of section 34 (and equivalent provisions) will be met in circumstances where a person witnesses part of an incident where another person is, at the time the incident is witnessed, being injured, killed or in peril.
However, when assessing liability for pure mental harm, parties should look at the incident from the vantage point of the Plaintiff. Though evidence may exist to suggest a less significant accident, it is open to a Court (in the ACT at least) to assess the requirements of section 34 (and the equivalent provisions) based on what the Plaintiff perceived at the time of the incident.
Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales  HCA 22
Philcox v King  SASCFC 38
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