In the recent case of FAI General Insurance Co Ltd v Lucre the NSW Court of appeal has refused to allow the "immediate victim defence" to operate.
The case involved a truck driver (the plaintiff at first instance) who collided head on with a car which was being driven on the wrong side of the road. The driver of the car was killed in the collision.
The truck driver subsequently developed post traumatic stress disorder and was awarded $154,000 in the District Court of NSW. FAI appealed from this verdict on the basis that Justice Dean in Jaensch v Coffey had stated that a plaintiff could have not cause of action against a defendant whose death or injury caused the plaintiff to suffer nervous shock.
The Court of Appeal declined to follow Justice Deane’s reasoning and stated that the fact that the driver was immediately involved in the accident as opposed to being a mere bystander was sufficient to form the proximity required to generate a duty of care on the part of the deceased driver.