Monday, July 04, 2016

Mother failed in attempt to sue dead son for ongoing mental anguish caused by his death

A mother who sued her dead son for damages, claiming that his fatally flawed driving was responsible for her psychiatric injury, has had the case dismissed by Australia's Supreme Court. Mahmoud Homsi, 26, died in June 2010 when his car veered onto the wrong side a road in Pascoe Vale South, Melbourne, and collided with a car driven by Jose Jipson. Mr Jipson’s three-year-old daughter Jiyaa was a passenger in his car and also died and his wife Ancy Ani John, 31, suffered major internal abdominal injuries. The accident was solely due to Mahmoud’s negligence. Known to police for offences against people and property, Homsi was speeding in his Ford sedan at 90km/h in a 60km/h zone. Ms Iman Homsi, now 50, was not at the scene but learnt of her son’s death in a telephone call soon after it occurred. She says she suffered a severe psychiatric reaction and has not worked since her son’s death.

Supreme Court Justice John Forrest said the “novel” question to be resolved was whether Mahmoud owed his mother a duty to take reasonable care while driving to ensure he didn’t suffer serious injury or death. Although Mahmoud was not living with his mother; the court accepted that there was a close relationship between the two. In December 2012, the Transport Accident Commission accepted Ms Homsi had suffered a severe psychiatric reaction to Mahmoud’s death. Ms Homsi launched her claim after the Andrews Government repealed a 2013 amendment to the Transport Accident Act that specifically outlawed claims for psychiatric injury as a result of the injury or death of another by persons not directly involved in, or witness to, an accident.

But Justice Forrest said even without this amendment common law had not established a general duty on the part of a driver not to cause psychiatric injury to a close relative as a result of injury to himself or herself. “Iman was not at the scene of the accident. She did not witness the death of her son. She was not an immediate victim: nor was there any pre-existing established relationship which would give rise to a secondary victim duty,” he found. “The relationship between mother and son and foreseeability that the mother would suffer psychiatric injury as a result of the harm, injury or death is insufficient to found a duty of care on the part of the son.” In dismissing the claim Justice Forrest said even if it was arguable, “powerful policy considerations” would count against such an expansion of duty of care.

“No crystal ball is required to envisage the raft of claims which could be brought by relatives of negligent drivers and other road users for psychiatric injury,” he said. Justice Forrest said opening the floodgates would impact TAC premiums and have a “knock on” effect that could spark claims against anyone who by their own fault suffers serious injury or death that causes foreseeable psychiatric injury to a relative, such as: “The heroin user who unintentionally overdoses. The hang glider who, through lack of care, collides with a cliff. The farmer who puts himself in a position of danger when attacked by a bull in the cattle yard.” Justice Forrest said such cases also had the potential to interfere with family relationships. “Even though there are situations where litigation between family members is common (transport accidents being one of them), the concept of being able to sue a close relative for the failure to protect himself or herself from harm is a totally different proposition,” he said.

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